News & Developments

July 21, 2015

Title VII Protections Extended to Victims of Sexual-Orientation Discrimination

On July 17, 2015, the Equal Employment Opportunity Commission(EEOC) issued a historic ruling, which affirmed that sex-discrimination protections of Title VII of the Civil Rights Act of 1964 extend to protect at least some employees who are discriminated against on the basis of sexual orientation. This ruling complements a previous ruling by the EEOC that Title VII’s prohibitions of discrimination “on the basis of sex” include protections again gender-identity discrimination faced by transgender employees across the country. The breadth of the July 17 decision remains to be seen; while the ruling came out of a case involving a federal employee, its rationale would seemingly extend to employees of private companies as well.

While the ruling is a tremendous advance for LGBT civil-rights protections, it is far from the end of the struggle for full civil-rights protections against LGBT discrimination. In addition to the breadth of the ruling being uncertain, as an initial matter, the EEOC decision does not have the same precedential force as a Supreme Court or even a lower federal-court ruling. The 3–2, party-line administrative ruling certainly reflects the current litigation approach of the EEOC, and should be given substantial weight by federal courts across the country, but it may encounter resistance from more conservative courts or even future EEOC officers and administrations. Additionally, while Title VII provides protections against employment discrimination, it does not extend to discrimination in housing, education, and public accommodations, also common contexts in which LGBT individuals face discrimination.

Finally, the majority of states still lack comprehensive protections against sexual orientation and gender-identity discrimination in the contexts of employment, housing, and public accommodations in their civil rights statutes, and the effort to extend such protections is increasingly met with resistance in the name of religious freedom.

Although LGBT rights are still protected to a much lesser degree than civil rights related to other protected classifications, the EECO’s ruling is significant progress for litigants and lawyers confronting employment discrimination at the workplace.

On June 26, 2015, the U.S. Supreme Court issued its long-awaited marriage-equality decision affirming the right of same-sex couples to marry, in Obergefell v. Hodges. As was widely predicted, the 5–4 decision was authored by Justice Kennedy, who had also authored the past few LGBT-rights Supreme Court decisions. The opinion contains Kennedy’s usual fusion of equality and liberty principles under the Fourteenth Amendment. The Obergefell opinion also, however, contains a doctrinal dimension not as widely predicted: the affirmation of marriage equality as rooted in part in the freedom of intimate association, a doctrine that the Court first explained was the basis of marriage protections in Jaycees v. Roberts in 1984, but which has never, until now, been the explicit foundation of the Court’s affirmation of intimate associational rights in a case.

In response to the decision, while there has been much celebration across the country, there have also been negative reactions from some, in the name of religion. Taking the lead in testing the rights of those who oppose same-sex marriage in the name of religion is Texas Attorney General Ken Paxton. Paxton released an opinion on Monday, June 29, questioning the Supreme Court’s ruling and advising that public officials in Texas may, in the name of religious freedom, object to the issuance of same-sex marriage licenses, along with judges and justices of the peace, who may not be compelled to perform same-sex weddings ceremonies over their religious objections. Paxton added, “It is important to note that any clerk who wishes to defend their religious objections and who chooses not to issue licenses may well face litigation and/or a fine. But, numerous lawyers stand ready to assist clerks defending their religious beliefs, in many cases on a pro-bono basis, and I will do everything I can from this office to be a public voice for those standing in defense of their rights.”

Religious objection battles over compliance with the Supreme Court decision are not likely to be confined to Texas, but will likely occur in other states as well, such as Alabama, where Alabama State Supreme Court Justice Roy Moore led the battle cry against past federal judicial orders recognizing marriage equality leading up to the Obergefell decision.

Responsibilities When Arresting a Mentally Ill Suspect

We have talked, seen, and heard about police brutality so often this past year; it has become almost “normal.” Transparency and social media ensure—or are in the process of ensuring—that police officers take proper steps for their own safety and others’ on calls. Often, mental illness is an aspect that police officers must consider when arresting suspects.

Recently, the U.S. Supreme Court found for the petitioners in San Francisco v. Sheehan; two San Francisco police officers were entitled to qualified immunity from a lawsuit seeking redress for a mentally disabled woman’s injuries. The woman had threatened to kill her social worker with a butter knife while he attempted to perform a welfare check on her. She had not taken her medication and was reported to the police. When the police arrived, the woman charged at them with a knife. The officers called in for backup. Instead of waiting for backup to arrive, one officer pepper-sprayed her as the other officer shot the woman, resulting in injuries. SeeSan Francisco v. Sheehan, 575 U. S. ____ (2015).

The Court did not address whether police should have taken Title II of the Americans with Disabilities Act (ADA) into consideration when arresting Sheehan. Instead, the case was decided based solely on Sheehan’s Fourth Amendment constitutional rights. According to Justice Alito’s opinion, Sheehan’s rights were not violated. Scalia filed an opinion concurring in part and dissenting in part, joined by Kagan, arguing that the writ of certiorari should have been dismissed and the case should not have been heard if the question put forth into the court would have been answered. It begs the question as to why the petitioner, City and County of San Francisco, failed to mention the ADA in their oral argument when their opening brief clearly asks for the Court to look upon the ADA issue.

The Ninth Circuit, along with a majority of circuits, has opined that Title II of the ADA applies to arrests. “Ignoring the basis of the case and key questions about the ADA and law enforcement puts into society’s minds that discrimination by public officials and brutality of those who are disabled are a non-issue,” says Amanda O’Neal, special education attorney.

SCOTUS to Decide Whether Congress Can Confer Article III Standing

When Congress authorizes a private right of action based on a statutory violation of federal law, does that authorization also create Article III standing? That is the question on which the Supreme Court recently granted certiorari in Spokeo v. Robins (13-1339). Its resolution could significantly affect litigation in several areas, including consumer finance, housing discrimination, disability rights, and class-action practice.

The case arose when plaintiff Thomas Robins brought a claim against the website operator Spokeo for allegedly violating the Fair Credit Reporting Act, 15 U.S.C § 1681, by publishing “inaccurate consumer information that is marketed to entities performing background checks.” The plaintiff sought class certification on behalf of a class of individuals whose information was similarly inaccurate. Although Robins asserted that he was “concerned that his ability to obtain credit, employment, insurance and the like will be adversely affected,” by the inaccurate information about him contained on Spokeo’s website, he did not assert that any of those negative consequences had yet occurred. Spokeo therefore argued that Robins had not suffered any injury-in-fact, and it sought dismissal of the case.

The district court ultimately agreed with Spokeo’s argument that Robins lacked standing and dismissed the case for lack of subject-matter jurisdiction. Robins appealed. The Ninth Circuit reversed, holding that Robins’s injury was both specific and concrete; the court ruled that because Robins “alleges that Spokeo violated his statutory rights, not just the statutory rights of other people” he is therefore “among the injured,” and his “personal interests in the handling of his credit information are individualized rather than collective.” Robins v. Spokeo, Inc., 742 F.3d 409, 413 (9th Cir. 2014) cert. granted, No. 13-1339 (Apr. 27, 2015). The Supreme Court granted a writ of certiorari to determine whether a statutory violation is a sufficient “injury in fact” to confer constitutional standing. Without standing, a federal court would lack subject-matter jurisdiction under Article III of the United States Constitution, and would lack the power to hear the case.

Robins raises an important question for civil-rights litigation, much of which depends heavily on statutorily created causes of action. Specifically, what kind of “injury” is required to establish standing, and can the imposition of statutory damage awards suffice? Numerous federal statutes both create affirmative obligations and authorize damage awards to plaintiffs who can show that a defendant breached a statutory obligation. Some of the most frequently invoked statutes include the Americans with Disabilities Act, the Fair Credit Reporting Act (FCRA), the Truth in Lending Act, and the Fair Housing Act. Many of the statutory damages authorized by these statutes are intended to prophylactically avert harm—for example, by authorizing remedies when housing testers uncover discrimination, or by requiring a robust disclosure of information in consumer financial transactions. Thus, a narrow decision on standing could significantly limit litigation under these statutes and would constrain Congress’s ability to authorize private litigation as a means of protecting public rights.

— Cassandra Robertson, professor of law; director of center for professional ethics, Case Western University School of Law

May 12, 2015

Student Conduct and Sexual Assault: How VAWA Is Changing the Landscape

One of the hottest topics on the minds of student-conduct experts these days is the Violence Against Women Reauthorization Act (VAWA). In March 2014, President Obama signed VAWA; included in the act are the Campus SaVE (or Sexual Violence Elimination) provisions. VAWA amends the Clery Act by creating several new obligations and clarifying the regulations already in place. The new regulations, effective July 2015, will be enforced under the Clery Act.

VAWA requires extended standards of investigations. In early 2014, the Department of Education issued a “Dear Colleague Letter” stating that, “as part of a good-faith effort to comply with the statute, institutions are expected to revise their policy statements to include those procedures and to identify the standard of evidence that the institution will use.” Schools will now have trained investigators in their conduct hearings with emphasis on protecting the safety of victims while promoting accountability. Conduct policies must identify the sanctions or protective measures that may be imposed if there is a finding of rape, domestic violence, sexual assault, dating violence, or stalking.

The new regulations mandate that accuser and accused are entitled to have an advisor of their choice present during a hearing. This change carries the most impact, as it now allows students to have an attorney. Prior to this, the school could limit advisors to staff or faculty members. The right to an attorney allows students and their families peace of mind that someone outside the school’s reach is looking out for their best interest not only for the duration of the school hearing, but for the long-term implications of its outcome. Furthermore, accuser and accused must now be notified simultaneously and in writing of the outcome of any proceeding, appeal procedure, changes to the outcome before it becomes final, and when it becomes final.

New reporting under the Clery Act includes crimes of domestic violence, dating violence, and stalking. In addition, hate-crime reporting will now include the national origin and gender identity of the victim. Inclusion of gender identity in the reporting procedures of hate crimes is a giant step in the recognition of rights of transgender students who are severely underrepresented to date. All victims’ names will be withheld if the crime is considered to be a threat. This forces schools to reevaluate how they will protect the confidentiality of victims and their alleged perpetrators when filing annual reports. Additionally, if a sexual crime results in or includes murder, both crimes will be counted in a school’s annual statistics.

Primary prevention and awareness programs covering rape, acquaintance rape, domestic violence, dating violence, sexual assault, and stalking will be mandated by VAWA. The training must include staff and faculty as well as students. Schools are required to make a statement prohibiting these offenses and providing legal definitions of each one. These ongoing prevention and awareness campaigns will include interactive workshops with in-depth discussions and question-and-answer sessions. Students and faculty will learn recognition of signs of abuse and how to prevent it, along with options for bystander intervention. Teaching safe options for intervening in a potential sexual crime could be the key to stopping the sex-crime epidemic we are seeing lately. Often, after an offense is reported, people come forward saying that they witnessed warning signs, but were hesitant to intervene. VAWA seeks to educate people who witness these signs, to step in and stop a crime from occurring.

Along with several changes to education and prevention programs, schools will now be required to provide mental-health services, victim advocacy, and legal assistance to their students, including assistance in obtaining protective orders. Victims will have the right to change class schedules, living arrangements, transportation, and work situations regardless of whether the report is made formal or kept restricted. The new act requires that these services be provided for crimes alleged on and off campus. This is essential to victims’ safety, privacy, and general well-being. It is estimated that anywhere from 60 to 90 percent of sexual crimes are not formally reported. There are various reasons victims may have for not making an unrestricted report; from the offender being a close acquaintance to embarrassment about the circumstances. But whatever the reasons, VAWA mandates that students get the help they need with or without the added formal investigation.

VAWA and Campus SaVE provisions are substantial amendments to the Clery Act. They codify concerns presented by the Department of Education, add needed obligations, and clarify gray areas of the original regulations. The act focuses on clearly delineating school procedure from education and prevention to investigation to reporting and adds a degree of power to victims and accused students. Accuser and accused can now seek legal representation outside the school’s resources, and that is a huge, needed change. I foresee that these new regulations will have a huge impact in the way schools handle student conduct and expect to see positive changes on the horizon.

SCOTUS Issues Ruling on Accommodation of Pregnant Employees

The U.S. Supreme Court on March 25, 2015, decided Young v. United Parcel Service, Inc. (UPS), 575 U.S. ___ (2015).The issue in the case was whether, and in what circumstances, the Pregnancy Discrimination Act (PDA), 42 U.S.C. § 2000e(k), requires an employer that provides work accommodations to non-pregnant employees with work limitations to also provide work accommodations to pregnant employees who are “similar in their ability or inability to work.” UPS offered a “light duty program” to workers who were injured on the job, were disabled under the Americans with Disabilities Act (ADA), or had lost their Department of Transportation (DOT) certifications. UPS, however, did not provide any such accommodations to pregnant employees who were not medically disabled. Young challenged the policy, arguing that the PDA requires an employer to provide pregnant employees light duty work if it provides similar work to other employees in other circumstances.

Young worked as a part-time driver for UPS where her responsibilities included pickup and delivery of packages. She had suffered several prior miscarriages so when she became pregnant, her physician limited her to lifting 20 pounds during the first 20 weeks of her pregnancy and 10 pounds thereafter. Her normal job requirement was that she be able to lift parcels weighing up to 70 pounds herself and 150 pounds with assistance. UPS did not allow Young to work under this restriction, resulting in her staying out of work without pay for most of her pregnancy and ultimately losing her health-insurance benefits. Young filed suit, and UPS responded by saying that other employees who had been accommodated fell within one of the three categories referenced above; and since Young did not, there had been no discrimination.

The Fourth Circuit Court of Appeals granted UPS’s motion for summary judgment, ruling that (1) the employer did not “regard” a pregnant employee as disabled under the Americans with Disabilities Act (ADA); and (2) employers are not required under the PDA to provide pregnant employees with light duty assignments as long as the employer treats pregnant employees the same as non-pregnant employees with respect to offering accommodations. That court further referred to UPS’s policy as “pregnancy blind,” showing no discriminatory animus toward pregnant workers.

The Supreme Court reversed the decision and remanded the case back to the trial court to allow Young to pursue her claim. The Court, refusing to accept the interpretation of the PDA espoused by either party, concluded that because Young had alleged disparate treatment, she could seek to prove her claim using the burden-shifting framework of McDonnell Douglas Corp. v. Green. In other words, Youngwould first need to make a prima facie showing of discrimination “by showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a discriminatory criterion illegal under Title VII.” In her case, this meant showing that she belonged to the protected class, that she sought accommodation, that the employer did not accommodate her, but did accommodate others “similar in their ability or inability to work.” Thereafter, the burden would shift to UPS to justify its refusal to accommodate Young based on “legitimate, non-discriminatory” reasons. The fact that the accommodation might be expensive or inconvenient for the employer is not necessarily sufficient justification. Even once the employer presents its justifications, the employee has an opportunity to show that the reasons offered are pretext for discrimination.

The Court concluded that Young had created a sufficient factual issue regarding whether UPS provided more favorable treatment to non-pregnant employees in situations that could not be distinguished from hers to allow her to take her case to a jury.

Indiana Amends RFRA Bill, Marking Potential New Era of Protections

Five days after Governor Pence signed Indiana’s Religious Freedom Restoration Act (RFRA), after a national outcry from those perceiving the legislation as targeted at and facilitating anti-LGBT discrimination, Pence, in a breathtaking about-face, ordered his legislature to fix the act to make it clear it could not be used to authorize discrimination after all. On April 2, 2015, the legislature, as ordered, approved new language to Indiana’s RFRA that clarifies that the act does not authorize refusals of services in public accommodations, or discriminatory treatment in housing and employment contexts, on the basis of protected categories including sexual orientation and gender identity. Governor Pence promptly signed the new version of RFRA into law.

The new language marks the first time that any Indiana statute has included explicit protections against sexual orientation and gender discrimination in its statutes. As for the dramatic reversal by Governor Pence and the legislature, which were well aware of LGBT-rights-based objections to the legislation prior to its passage, their new willingness to incorporate protections against LGBT discrimination into Indiana statutes may even extend to a revision of the state’s civil-rights laws to finally include sexual orientation and gender identity as protected classes. That development will not occur, however, until the next legislative session in Indiana, and will only transpire if voter and business community support for LGBT rights continues to override conservative inclinations against providing such protections.

In the meantime, there are over two dozen other states in the country that similarly lack civil-rights protections against LGBT-discrimination, and the federal Employment Non-Discrimination Act remains stalled out in no small part because of religious exemption language in the act, which will, after the Indiana uproar, be likely viewed more of a poison pill than ever.

Indiana Passes RFRA

On March 26, 2015, Indiana became the twentieth state to enact a state Religious Freedom Restoration Act (RFRA), mirroring the federal RFRA law that requires strict scrutiny, i.e., a higher level of scrutiny than required under First Amendment analysis, when religious freedoms are substantially burdened.

In reaction to Indiana’s RFRA being signed into law, an unprecedented national outcry has ensued, in part because Indiana does not have statewide civil-rights protections for LGBT individuals that might otherwise shield them from discrimination.

However, a number of Indiana localities do have such protections. Thus, Indiana and the 19 other states are all similarly positioned. It remains to be seen how state RFRA laws may be used by religious people to shield themselves from laws they find morally objectionable; whether in the case of Obamacare (the Supreme Court Hobby Lobby case affirming federal RFRA exemptions against birth-control requirements) or in the case of LGBT rights violations (in the context of state or local civil rights ordinances, marriage laws, or otherwise).

SCOTUS Nixes APA Notice-and-Comment Requirement

In Perez v. Mortgage Bankers Association, No. 13-1041, the U.S. Supreme Court struck down the Paralyzed Veterans doctrine developed by the D.C. Circuit Court of Appeals requiring agencies to employ the full notice-and-comment rulemaking procedure of the Administrative Procedures Act (APA) when issuing new interpretations of their regulations that differ significantly from prior interpretations. See Paralyzed Veterans of America v. D.C. Arena L.P., 117 F.3d 579 (D.C. Cir. 1997). In so holding, the Supreme Court has paved the way for federal agencies that enforce civil rights—including the Department of Justice and the Equal Employment Opportunity Commission—to more easily alter or reverse their positions on substantive issues of law without the need to go through the notice-and-comment process.

In Perez, the Department of Labor (DOL) had issued a series of conflicting and inconsistent opinions regarding the exempt status of mortgage-loan officers under the administrative exemption of the Fair Labor Standards Act (FLSA). In 1999 and 2001, the DOL issued letters holding that mortgage-loan officers did not qualify for the exemption. In 2004, the DOL issued new regulations regarding the exemption, and in 2006, the DOL issued an opinion letter finding that mortgage-loan officers did qualify for the exemption under the new regulations. Finally, in 2010, the DOL reversed itself again, withdrawing the 2006 opinion letter and issuing an administrator's interpretation (AI) concluding that mortgage-loan officers did not qualify for the exemption. The Mortgage Bankers Association (MBA) filed suit, arguing that the AI was procedurally invalid under the D.C. Circuit's Paralyzed Veterans decision. The D.C. Circuit agreed and vacated the AI because it was issued without following the APA's notice-and-comment rulemaking procedure.

The Supreme Court reversed the D.C. Circuit, concluding that the Paralyzed Veterans doctrine was invalid under the plain language of the APA. The APA distinguishes between two types of rules—legislative rules, which have the full force and effect of law, and interpretive rules, which are issued to advise the public of the agency's construction of the statutes and rules which it administers, but do not have the full force and effect of law. The Supreme Court held that the APA plainly does not require an agency to follow the notice-and-comment process for interpretive rules, only legislative ones. As the AI issued by the DOL was an interpretive rule, the DOL's failure to follow the notice-and-comment procedure did not render it invalid.

This decision is not particularly surprising in light of the Supreme Court's straightforward interpretation of the plain language of the APA. However, it may still result in tangible consequences for employers and civil-rights advocates. Since 1997, Paralyzed Veterans operated as a hindrance to unilateral agency action. Now, federal agencies may be motivated to begin issuing interpretive rules such as AIs or opinion letters more frequently in an effort to enhance their enforcement efforts without being hindered by their prior interpretations of regulations. Employers and civil-rights advocates should be aware that this may lead to an uptick in inconsistent interpretive guidelines from the DOJ, EEOC, and other federal agencies in the coming years, particularly as presidential changes lead to inevitable changes in agencies' enforcement priorities. As interpretive rules become more malleable, pursuit of enforceable judicial decisions, rather than reliance on changeable agency interpretations, may become increasingly necessary.

Small Firm Practice Can Blend Public Service and Profit

Lawyers train to be risk-adverse for our clients, and also in our own professional choices. In law school, I had a vision of tracks that must be followed for a career at a big firm, in public interest, or in academia. I feared stumbling off the prescribed path. Several years into my public-interest career, I discovered to great alarm that the jobs I had desired and obtained were not fulfilling to me, because in overburdened legal-services offices I was not able to solve the systemic multi-layered crises facing my clients, and I worked extremely long hours while barely able to pay my bills.

I decided to find my passion in law and figure out how to get paid for it, rather than just apply to available jobs. I became a legal entrepreneur and took massive risk. It was the best professional decision I could have made. Eight years ago I started my own solo law practice in family law and alternative dispute resolution, which I expanded to a small firm two years ago. I chose clients for whom I wished to advocate. I represent many LGBTQ and nontraditional families who may not receive support under the law without creative advocacy. I work with domestic-violence survivors. I practice mediation and collaborative law to keep families who are divorcing out of the court process whenever possible to preserve the dignity of their relationships. I work with families over generations with prenuptial agreements, adoptions, estate planning, and referrals to colleagues in other practice areas, and get to feel like Atticus Finch while developing this trusted close relationship with families in my community. I work on a dramatic sliding scale for clients based on income level in LGBTQ family law, a social-justice issue that affects clients at all socioeconomic levels. I stay involved in legislative and media advocacy and academia on this topic as a frequent lecturer and an adjunct professor. When I work long hours, it is my decision, as it is my decision when I need a long weekend away from work.

Small firm practice offers a powerful possibility for a sense of self-direction in legal careers, and passion for what we do. It is possible to believe we do important work that serves justice in the world and makes positive impact, and make money, too. Small firm practice has also given me a chance to heal the business-professional dichotomy, which juxtaposes a profession as one that serves the public good versus a business as one that serves an amoral profit motive. In 1984, Chief Justice Warren Burger declared that the practice of law had become a business and was no longer a profession. As lawyers, we deserve a more positive identity than feeling like a hired gun. Contrary to my original assumptions as a law student, I have found my own service to the public interest and professionalism most effective through starting my own small business. Jumping off of prescribed attorney paths toward risk has brought me my greatest success.

Black Girls Matter: Pushed Out, Overpoliced, and Underprotected

In recent years, a multitude of research, data, and policy initiatives have reflected the disproportionate impact of zero-tolerance and other harsh disciplinary policies in schools on boys and young men of color. However, as highlighted by a new report by the Columbia Law School Center for Intersectionality and Social Policy Studies (CISPS) and the African American Policy Forum (AAPF), very few studies focus on the effect these policies have on females of color and the similarities and differences between girls and their male counterparts. Through focus groups and interviews performed in Boston and New York, CISPS and AAPF determined that girls and young women of color were also youth in crisis, experiencing victimization and achievement gaps due to the current disciplinary environments seen in many educational institutions.

The study’s key observations ranged from issues of educational achievement and engagement to personal safety and familial responsibilities. Academically, while both boys and girls of color are subject to larger achievement gaps and harsher discipline, females often experience greater disparities in treatment and attention than male peers. The at-risk youth surveyed described their discipline-centric environments as unsafe, not conducive to learning, and lending to disengagement in the classroom. Other data gathered highlighted the high incidence of interpersonal violence, pregnancy, and familial caretaking obligations as outside influences lending to school detachment. The study also found that the use of punitive punishments rather than restorative techniques contributes to the problems facing these youth and leads to a disproportionately high number of young women of color in the juvenile justice system.

The study recommends a number of approaches, including expanding research frameworks to include young women of color, developing equitable funding efforts to support education across all genders and races, and enforcing positive anti-harassment and anti-bullying measures. The report additionally advocates for reforms to the juvenile justice system and for the public to become involved to engage, support, and assist these young women with the myriad of challenges they face.

—Jessalyn Schwartz, attorney, Boston, MA; Member of the ABA Children and the Law Advisory Task Force

January 23, 2015

Supreme Court Grants Cert to Decide Same-Sex Marriage Case

On January 16, 2015, as widely anticipated, the Supreme Court granted certiorari to hear the Sixth Circuit same-sex marriage cases arising out of Kentucky, Tennessee, Ohio, and Michigan.

The cases are now consolidated, and the petitions for writs of certiorari are granted limited to the following questions: (1)Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?; and (2) does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

By framing the issues in terms of state requirements rather than in terms of the rights of the parties, the Court leaves open whether the case will be treated primarily as a substantive due-process case addressing the fundamental right to marry the person of one’s choice (as in past marriage cases), an equal-protection case, or as a hybrid “equal liberty” combination of the two. It is possible that a record number of amicus briefs will be filed in this historic case.

Violence at Rikers Island Lands NYC Right in Court

2014 was a tumultuous year for the legal system in the state of New York. Unpopular decisions not to indict police officers in the death of Eric Garner, and widespread protests created tense environments throughout the state. In December 2014, the metropolis landed at the center of another legal battle after federal prosecutors launched a lawsuit against the city. In a 36-page lawsuit, the U.S. government detailed a long history of civil rights violations of adolescents at Rikers Island, the second largest jail in the United States.

Just four months prior to the decision to proceed to court, the office Preet Bharara, U.S. Attorney for the Southern District New York, released a report that revealed an infectious cycle of violence toward teenage inmates at Rikers. Amongst the infractions, the report detailed widespread excessive force by correction officers, the extraordinary use of solitary confinement, and a flawed system of investigating assaults by guards.

In a separate investigation on Rikers Island, the New York Times found 129 inmates with serious injuries. Of that number, a sobering 77 percent were inmates who had received a mental-illness diagnosis. These sobering facts were clues to a pervasive culture of abuse, violence, and mistreatment at Rikers Island, which soon became ammunition for the current lawsuit against the city.

The current suit has been lodged in conjunction with a preexisting class-action lawsuit (Nunez v. City of New York) regarding brutality at Rikers Island. The Nunez case was filed in May 2012, to expose “a culture of routine and institutionalized staff violence against inmates” within the New York City Department of Correction. Combined with the current suit, the Office of U.S. Attorney Preet Bharara believes it will be an effective way to address the violence targeted at both adults and adolescents at Rikers Island.

In light of the activities that took place in 2014, the current year is shoring up to be a litigious one for New York City and the state of New York.

When Is the Qualified First Amendment Privilege Waived?

The Florida Supreme Court recently upheld a trial court's order requiring the production of documents subpoenaed in a constitutional-validity challenge of the Florida legislature's 2012 congressional redistricting plan. Bainter v. League of Women Voters of Florida, No. SC14-1200 (Fla. Nov. 13, 2014). The court held that the qualified First Amendment privilege was waived based on the totality of the circumstances and the inexcusable delay in asserting the privilege.

Bainter was subpoenaed for deposition and the production of documentation. At the deposition, Bainter produced documentation, claiming that the documentation was complete. Through questioning, Bainter discussed his interest in the political process but there was no implication of a violation of Bainter's First Amendment right to freedom of association. The trial court found that the documents produced were not complete.

After service of a subsequent subpoena for documents, the appellants, who were non-parties, filed a motion to quash, relying on relevancy, burdensomeness, and over-breadth. At the hearing, no First Amendment issue was raised. After a second hearing, in which the same objections were addressed with no First Amendment claims being raised, the trial court denied the motion to quash, but limited the scope of the documents to be produced. The appellants filed an unsuccessful petition for writ of certiorari, claiming that the trial court "authorized discovery beyond the scope of matters reasonably calculated to lead to admissible evidence” but failing to identify any claim as to a First Amendment violation.

The appellants subsequently produced documents with qualifications. This production led to a motion for contempt and sanctions, including a waiver of confidentiality and privilege. At the hearing, the appellants stated that the privilege was "proprietary business information[,]" of trade secrets. Again, no First Amendment violation was raised. The appellants were found in contempt, with the trial court requiring production, a privilege log, submission of withheld documents for an in camera review, and an award of sanctions.

In submitting the privilege log to the trial court, the appellants claimed, for the first time, that the First Amendment "freedom of association" was violated. After an in camera review, using the First Amendment balancing test, 538 documents were identified as subject to production but should be treated as confidential. After the trial court denied the appellants' motion to close the courtroom to the public during the use of the documents at trial, the appellants appealed the discovery rulings to the Florida Court of Appeal, which ultimately passed through to the Florida Supreme Court.

In its review of the record, the supreme court used Fla. R. Civ. 1.280(b)(6)'s standard for parties: The withholding of privileged but otherwise discoverable information must expressly claim the privilege and describe the nature of the item not produced "in a manner that, without revealing information itself privileged or protected, will enable the other parties to assess the applicability of the privilege or protection." The supreme court recognized that the appellants failed to expressly claim that the documents were privileged or provide a privilege log during the numerous hearings and motions addressed by the trial court. The supreme court also recognized that Bainter discussed the documents in his deposition, without any claim of privilege. The supreme court found that, "[b]y responding to the deposition questions and acknowledging discussions with other political consultants without ever revealing the true nature of those communications or asserting a First Amendment privilege, in conjunction with the failure to timely assert the qualified privilege after the deposition testimony and months of additional hearings, we conclude that Bainter waived his ability to later claim that the documents revealing those communications were privileged on that basis."

As illustrated in Bainter,waiver may occur by the lack of appropriate objections and the compliance with the spirit of the rules. While the appellants were non-parties not traditionally subject to the privilege requirements of Fla. R. Civ. P. 1.280(b)(6), the privilege was waived for the failure to uphold the standards required to maintain the privileges asserted. Further, the collective concerted actions of the appellants, not just the actions of each individual considered separately, resulted in the establishment of waiver by the totality of the circumstances.

As a holiday post-script, the Miami Herald reported that the appellants sent out a holiday card,

Its animated Christmas card comes with jingling bells and features Pat Bainter in a Santa coat with colleagues Matt Mitchell and Mike Sheehan at his side. It announces "But there's one 'secret' we've made sure they'll never get."

A countdown clock notes that the message will self destruct in 15 seconds, and the card then slides into a paper shredder and ends with: "Merry Christmas."

Stage Set for Supreme Court to Decide Same-Sex Marriage Issue

The Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675 (2013), while affirming same-sex marriage-recognition rights in the context of striking the Defense of Marriage Act’s opposite-sex-only marriage definition, was limited in its holding. What the Court left for another day is the explicit recognition that—as the Court has recognized in challenges to marriage bans brought by interracial couples, Loving v. Virginia, 388 U.S. 1 (1967); prisoners, Turner v. Safley, 482 U.S. 78 (1987), and parents who are delinquent on child-support payments, Zablocki v. Redhail, 434 U.S. 374 (1978)—LGBT individuals across the country have an equal fundamental right to marry whom they choose.

Since the nineteenth century, the Court has recognized marriage as “the most important relation in life,” Maynard v. Hill, 125 U.S. 190, 195 (1888), and since 1923, has recognized marriage as a fundamental liberty interest protected by the Constitution’s due-process guarantees, Meyer v. Nebraska, 262 U.S. 390, 399 (1923). Based on these and later cases affirming fundamental marriage rights, along with other cases affirming equality and liberty protections for LGBT individuals, Romer v. Evans, 517 U.S. 620 (1996), and Lawrence v. Texas, 539 U.S. 558 (2003), a series of federal decisions have recognized same-sex marriage rights. While these cases set the doctrinal stage for same-sex marriage equality, Windsor’s failure to explicitly resolve the ultimate same-sex marriage-equality question left intact an ever-evolving patchwork of laws across the country with different degrees of protections for same-sex couples and their families.

Thirty-five states and the District of Columbia currently accord fully equal-marriage rights to members of same-sex couples. The remaining states consist of a mix of 1) those states that, along with the federal government (for purposes of some, but not all, federal benefits), recognize same-sex marriages performed in other states but not in their own and 2) those states that do not recognize any same-sex marriages, although the federal government does. In every state that still bans same-sex marriage, there are pending lawsuits challenging the lack of marriage equality.

On October 6, 2014, the Supreme Court rejected certiorari over Fourth, Seventh, and Tenth Circuit appeals of federal decisions striking down a number of states’ same-sex marriage bans. As a result, the appellate decisions granting equal marriage rights in those cases stood, and stays were lifted in Virginia, Utah, Oklahoma, Indiana, and Wisconsin, allowing same-sex marriages in those states to proceed. After that certioraridenial, arguably the most dramatic decision not to decide a case this century, a circuit split finally arrived in the form of the Sixth Circuit decision, DeBoer v. Snyder, No. 14-1341 (6th Cir. Nov. 6, 2014). Justice Ginsburg had previously signaled that it was such a same-sex-marriage circuit split that the Court was waiting for, hinting that a ruling by the Sixth Circuit specifically upholding same-sex-marriage bans would create the type of urgency that would make Supreme Court review more likely. Now that the Sixth Circuit has so ruled and certiorari petitions have been filed in that case, the Court is poised to accept review in the next month, and to decide in this term the constitutionality of same-sex-marriage bans.

In its per curiam decision in Glebe v. Frost, No. 14-95, -- U.S. --, 2014 U.S. LEXIS 7655, 2014 WL 6088827 (Nov. 17, 2014), the U.S. Supreme Court rejected the argument that restricting a criminal defendant’s closing argument by prohibiting defense counsel from simultaneously contesting the elements of the crime and the affirmative defense of duress constitutes structural error.

Defendant Frost was charged with participating as an accomplice in a series of armed robberies and related offenses. During his trial testimony, Frost admitted his participation, but contended that he acted under duress. Notwithstanding Frost's “admission of guilt” on the stand and evidence that included three taped confessions, defense counsel advised the court that in closing argument he intended to argue (1) that the state failed to prove that Frost acted as an accomplice and (2) that Frost acted under duress. The trial court found that state law prohibited simultaneously contesting the elements of a crime and arguing the affirmative defense of duress and ordered defense counsel to choose between these theories of defense. Frost was convicted.

The Washington Supreme Court found the trial court’s order to choose between defenses error, but concluded that it was trial error, subject to harmlessness review, rather than structural error requiring automatic reversal.

The U.S. Court of Appeals for the Ninth Circuit eventually reviewed the case under the Antiterrorism and Effective Death Penalty Act and reversed the conviction, finding that the state court’s conclusion failed to apply the clearly established federal law principle decided in Herring v. New York, 422 U.S. 853 (1975) (the denial of summation violates the Assistance of Counsel Clause and constitutes structural error).

In dismissively reversing the Ninth Circuit, the U.S. Supreme Court rejected the idea that placing such a restriction on closing argument was sufficiently akin to wholly denying it. The Court found that to bring this restriction within the narrow category of error deemed it to be structural, and it further rejected findings that the restriction effectively forced the defendant to concede guilt. The state court unreasonably failed to apply clearly established federal law in finding the restriction to be trial error rather than structural error.

Do Female Attorneys Receive Same Compensation as Male Counterparts?

In a recent article on InsideCounsel.com, Ed Silverstein discusses Monster and WageIndicator Foundation's survey, which shows that females in the U.S. legal field earn 28.5 percent less than their male counterparts. Deborah Froling, a partner at Arent Fox and past president of the National Association of Women Lawyers, was not surprised by the findings, stating "We are not making the strides we would like. . . . I don't think things have changed all that much." Froling notes that while firms hire men and women at the same rate, the disparity sets in and women do not receive bonuses, salaries, or promotions at the same rate as men. Froling believes that women would benefit from sponsors who are involved in the compensation discussions, whether the sponsor is male or female.

Martin Kahanec, a visiting fellow at Harvard University's Labor and Worklife Program, also commented that equal opportunity is possible only if “employers enable men and women to reconcile their careers with family lives equitably. In doing so, companies will see happier employees and an increased retention of top talent.”

District Court Limits Gun Rights for Nonviolent Offenders

A recent decision by U. S. District Judge James Knoll Gardner of the Eastern District of Pennsylvania, in the matter of Binderup v. Holder, has begun to address concerns long lamented by gun-rights, and other civil-rights, advocates. For decades, activists have complained about the multitude of nonviolent crimes for which a person may be stripped of their civil rights.

The crux of their complaint is that nonviolent and victimless criminal conduct can lead to a lifetime disenfranchisement from the right to keep and bear arms. Federal law prohibits possession of firearms and ammunition by a variety of people, including anyone who has been convicted of “a crime punishable by imprisonment for a term exceeding one year.”

Daniel Binderup, the plaintiff in the most recent case, fell into an especially rare trap with regard to his firearms rights. Many states have a process for restoring the firearms rights of felons, and the federal government recognizes those restorations. However, Binderup’s conviction was for a state-court misdemeanor, which was punishable by up to five years in prison (he received only a fine and probation). The misdemeanor-rights restoration process available through the state was not recognized by the federal government, which refuses to offer any restorations itself.

Judge Gardner was asked to analyze this issue from an as-applied Second Amendment perspective. Noting that the ban on firearms possession by felons is based on the principle that felons are more likely to be dangerous, Judge Gardner noted that Binderup was an exceptional case. The 17-year-old conviction was Binderup’s only brush with the law and had involved a consensual sexual relationship with a 17-year-old employee (over the age of consent in Pennsylvania). The court ruled that Binderup “would present no more threat to the community that the average law-abiding citizen” and was thus entitled to his Second Amendment rights.

Should this decision stand, it is likely to form the basis for many future challenges to the federal prohibition on firearms possession by those convicted of nonviolent crimes.

Three Issues Medical-Marijuana Use Creates For Employers

Not all states have legalized the use of marijuana for medicinal purposes. For those that have (Alaska, Arizona, California, Colorado, Connecticut, the District of Columbia, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington), here are three issues that may leave employers feeling dazed and confused.

1. Discipline Following Positive Drug Test
While Delaware and Minnesota's statutes prohibit discrimination against employees and applicants based on positive drug tests (whether pre-hire, random, or otherwise), the Sixth Circuit found that an employer did not violate the Michigan Medical Marijuana Act, public policy, or disability-accommodation laws after it terminated an employee who tested positive for medical-marijuana use. See Casias v. Wal-Mart Stores, Inc., 695 F.3d 428 (6th Cir. 2012). However, even in those states with anti-discrimination laws against medical-marijuana users, employees are not protected from marijuana use while on the job. Further, this protection only extends to those persons who register as qualified patients and have a valid prescription from a qualified prescribing physician in compliance with the applicable state-law requirements allowing for the use of medical marijuana. Employees should be required to present evidence of the lawful use of medical marijuana in these instances.

Despite these statutes, safety concerns trump an employee's right to use medical marijuana. For example, the rules set by the Department of Transportation regulating drug and alcohol use for truck drivers override an employee's right to take medicine marijuana, even in states where it is legal.

2. Disability Discrimination
The New York law specifically classifies individuals prescribed medical marijuana as "disabled." Accordingly, employers may need to provide reasonable accommodation for medical-marijuana users. While courts have not yet addressed the issue of what constitutes a "reasonable accommodation" for medical-marijuana use, one suggestion is relaxing an employer's drug policy to permit the employee's medical marijuana use. Whether or not such "accommodation" is reasonable will depend on the employee's specific job. While it is low-cost to the employer, if the side effects of marijuana have a negative impact on the employee's job, as could be the case of truck drivers or machine operators, such accommodation may not be reasonable.

Other states' laws, such as Alaska, provide an explicit provision exempting employers from "reasonably accommodating" the use of medical marijuana. Alaska Stat. § 17.37.040(d). This underscores the differences in medical-marijuana laws across the country, and the need to be familiar with the laws in each state where an employer does business.

3. Employer Reimbursement of Medical Marijuana
At least one state found that an employer and its workers' compensation carrier are responsible for reimbursing an employee for costs associated with his medical-marijuana use. Vialpando v. Ben's Auto. Servs., No. 32,920, 2014 N.M. App. LEXIS 50 (N.M. Ct. App. May 19, 2014). The New Mexico Court of Appeals found that New Mexico's Workers' Compensation Act required an employer to reimburse an employee injured on the job for his medical-marijuana use because the medical marijuana constituted a "service" or "prescription drug" under the act. Further, it did not cause the employer to violate the Controlled Substance Act or violate public policy given that the U.S. Department of Justice deferred its right to challenge other states' medical-marijuana laws. While this position may be an outlier, the framework outlined in the opinion could be applied to any other states' medical-marijuana laws.

SCOTUS Delivers Mixed Signals Regarding Summary Judgment

Summary judgment made an unexpected return to the Supreme Court docket in the October 2013 term. The Court decided three cases—all section 1983 actions involving Fourth Amendment excessive-force claims, with the defendant officers defending on qualified immunity. At best, the three cases together reveal a Court sending mixed signals on summary judgment. One case arguably represented the first victory for a civil-rights plaintiff on summary judgment before the Supreme Court in quite some time, while another case arguably repeated the Court’s previous mistakes in handling video evidence on summary judgment.

The cases are worth exploring for some hints as to where the Supreme Court, and thus lower courts, may go from here.

The one case receiving full treatment was Plumhoff v. Rickard. Like 2007’s Scott v. Harris, this was an excessive-force claim arising from a high-speed police chase and use of deadly force to end the chase. The chase began with a routine traffic stop and continued for some time on the interstate and on city streets, with six police cruisers in pursuit. The chase entered a parking lot, where officers and squad cars surrounded the fleeing car; this paused, and perhaps ended (this was in some dispute), the pursuit. When the driver did not get out of the car, but instead continued some maneuvering, police fired 15 shots into the car; the driver drove out of the lot and back onto the street before crashing the car into a building. Both the driver and passenger, his daughter, died from a combination of gunshot wounds and injuries from the crash. As in Scott, the entire thing was captured on video from the dashcams of three pursuing police cars.

The Court held that the defendant officers were entitled to summary judgment in fairly short order and without dissent. The officers did not violate the plaintiff’s rights by firing 15 shots at the car because 1) the chase was ongoing, meaning deadly force was justified to end it, and 2) having decided to use deadly force, the officers were entitled to use however much force was necessary to end the chase. (Justice Breyer did not join this portion of the opinion.) In any event, the officers were entitled to qualified immunity because any right was not clearly established, given the absence of non-distinguishable case law finding a violation in such use of deadly force (Justice Ginsburg joined only this portion).

Plumhoff is a troubling case because, as in Scott, the Court over-relied on video at summary judgment. The Court described and characterized at length what “happened” in the chase based solely on its viewing of the video. From this, the Court insisted that the record (really the video only) “conclusively disproves respondent’s claim that the chase in the present case was already over when [the officers] began shooting.” The problems with this approach to video evidence on summary judgment have been described at length elsewhere. One is that video does not, as Scott insisted and Plumhoff assumed, “speak for itself.” What video actually says depends on a number of different considerations—who and what is depicted, who created the images, and details of the images themselves (such as length, clarity, distance, and angle). Second, as Dan Kahan and his co-authors famously showed, what a viewer “sees” on video is affected by cultural, demographic, social, political, and ideological characteristics. It thus becomes more essential that the broader range of community voices that compose a jury be given an opportunity to review and draw inferences from the video, rather than having it handled by the court at summary judgment. Unfortunately, Plumhoff validates and sanctions the latter approach.

The other two cases had better results, from the standpoint of civil-rights plaintiffs and commentators seeking to reign in summary judgment. But the Court resolved both in a more confounding procedural context, which may affect their long-term effect.

In Tolan v. Cotton, the Court granted cert, vacated the decision granting summary judgment for the police officer defendant, and remanded for further consideration, all in a single order, on a case that had been re-listed for conference nine times. The case arose from a police shooting in an encounter begun by an officer’s incorrect assumption that the plaintiff and a companion were driving a stolen car. The Fifth Circuit had affirmed the district court’s grant of summary judgment for the defendant, concluding that even if the officer violated the Fourth Amendment in using deadly force, he was entitled to qualified immunity because it was not clearly established that it was unconstitutional to use deadly force given the circumstances at hand. But in a per curiam opinion attached to the remand order, the Court held that the lower court erred by resolving disputed facts in defining the circumstances for purposes of qualified immunity. The lower court had ignored conflicting record evidence and improperly reached conclusions on four particular facts, including whether the defendant had made a threatening move towards the officer.

Two weeks later, the Court issued a summary GVR (grant, vacate, and remand) order in Thomas v. Nugent, another Fifth Circuit decision (this one per curiam), for reconsideration in light of Tolan. Thomas arose from the death of an arrestee who was Tasered eight times by an officer attempting to bring him into custody on an outstanding warrant. As in Tolan, the Fifth Circuit had held that the officer was entitled to summary judgment on qualified immunity, because the right at issue was not clearly established. And the court again defined the specific context of the right to distinguish prior precedent that might serve to clearly establish, while again improperly drawing conclusions about disputed facts.

Tolan marked the first time in many years that a civil-rights plaintiff prevailed before the Supreme Court on summary judgment, causing some to see it as a major summary-judgment decision marking at least a slight move from a defense-centric approach to Rule 56. And the subsequent GVR in Thomas put a fine point on it, emphasizing to lower courts that they must not engage in fact-finding in the guise of deciding qualified immunity questions on summary judgment. On the other hand, Tolan and Thomas potentially carry less precedential force, given the summary nature of their resolution—no merits briefing or argument, summary disposition as to both cases. Ultimately, much may depend on what happens to both cases on remand in the district court and the Fifth Circuit.

EO Prohibits Gender-Identity and Sexual-Orientation Discrimination

President Barack Obama signed an executive order on July 21, 2014, that prohibits government contractors and federal employers from discriminating against employees based on gender identity and sexual orientation.

The executive order amends two previous orders concerning federal employees and employees of federal contractors. First, it adds sexual orientation and gender identity to an order originally signed by President Lyndon Johnson in 1965 that prohibits federal contractors from discriminating based on race, religion, gender, or nationality. (President George W. Bush amended Johnson's order in 2002 to allow religiously affiliated contractors to favor their members in hiring.) Second, it adds gender identity to an order, originally signed by President Richard Nixon in 1969, that prohibits discrimination against federal employees based on race, religion, gender, nationality, age, or disability. President Bill Clinton previously amended the order to include sexual orientation. The provision affecting federal employees takes effect immediately, and the Department of Labor has 90 days to implement regulations concerning employees of federal contractors.

The new executive order's inclusion of protection for gender identity provides an additional protection for federal employees and federal contractor employees, separate and apart from that provided for by protections from gender discrimination. No current federal law explicitly prohibits discrimination based on gender identity in employment. Since the Supreme Court recognized gender stereotyping as a potential form of gender discrimination under Title VII in Price Waterhouse v. Hopkins, however, claims otherwise sounding in gender-identity discrimination have been treated by courts under the framework of gender. For example, in 2011, the Eleventh Circuit upheld an equal-protection claim in Glenn v. Brumby on the basis that “discrimination against a transgender individual because of her gender-nonconformity is sex discrimination, whether it's described as being on the basis of sex or gender.” Similarly, in 2012, the Equal Employment Opportunity Commission considered transgender discrimination as a form of gender discrimination in Macy v. Holder when it held that “Title VII's prohibition on sex discrimination proscribes gender discrimination, and not just discrimination on the basis of biological sex.” President Obama's executive order now recognizes gender-identity discrimination as an inherently distinct form of discrimination from gender discrimination.

SCOTUS Overturns Summary Judgment in Qualified-Immunity Case

In Tolan v. Cotton, 134 S. Ct. 1861 (2014) No. 13-551 (May 5, 2014), the Supreme Court reversed a grant of summary judgment, holding that the plaintiff—a professional baseball player—should be allowed to go to trial against the police officer who shot him. The case attracted attention for several different reasons. First, the case was an unusual per curiamsummary reversal on the petition for certiorari, decided without hearing argument or obtaining merits briefs; second, the case sparked an unusual concurrence from Justices Alito and Scalia, agreeing with the ultimate disposition but arguing that the case presented an “utterly routine” issue of error correction that was unworthy of Supreme Court review; third, and perhaps most significantly, the case represented the first time in ten years that the Supreme Court had ruled in favor of the plaintiff in a qualified-immunity case against a police officer.

The case arose when Robbie Tolan, who played professional baseball for the Washington Nationals, was driving to his family’s home in Bellaire, Texas. A police officer noticed Tolan’s SUV make a “sharp turn,” and keyed the license plate number into his mobile data terminal. The police officer made a data-entry error, entering a number that was one digit off, and got an alert that the vehicle was stolen. Contrary to normal procedure, the officer did not run the tag a second time to confirm the information. Instead, the officer called for backup on a stolen vehicle report, and was shortly joined by Sergeant Jeffrey Cotton. The officers then confronted Tolan and his cousin outside the family home. Tolan’s parents came outside to see what was going on; they denied that the vehicle was stolen, stated that they owned the house and the vehicle in question, and identified Robbie as their son. Cotton ordered Mrs. Tolan to the garage, and then, when she did not move as quickly as he wanted, grabbed her arm, pulled her to the garage, and slammed her against it. Robbie then “pushed himself up and turned around to face Cotton while saying, ‘get your fucking hands off my mom.’” At that point, “[w]ithout issuing any warning, Cotton unholstered his weapon, pointed it at Robbie, and shot at him three times, striking him once in the chest.” Tolan v. Cotton, 538 F. App'x 374 (5th Cir. 2013) (Dennis, J., dissenting to the denial of rehearing en banc). Tolan survived the shooting, though a bullet remained lodged in his liver. He filed suit against Cotton, alleging that the officer had used excessive force against him in violation of the Fourth Amendment.

The district court granted summary judgment in favor of Cotton, concluding that the officer had not used unreasonable force as a matter of law and therefore did not violate the Fourth Amendment. The Fifth Circuit affirmed the judgment, concluding that regardless of whether the conduct violated the Fourth Amendment, the officer had qualified immunity because he did not violate a clearly established right; it concluded that a reasonable officer in Cotton’s position could have believed that Tolan presented an immediate threat to the officer’s safety. Three judges dissented to the denial of rehearing en banc, arguing that the court had overlooked countervailing evidence in the record that supported the plaintiff’s claim.

The Supreme Court reversed. The Court’s opinion cited the same evidence in the record that the dissenting Fifth Circuit judges had noted in their dissent to rehearing, and it concluded that the Fifth Circuit had “fail[ed] to credit evidence that contradicted some of its key factual conclusions,” and therefore improperly weighed the evidence “and resolved disputed issues in favor of the moving party,” instead of properly viewing the evidence in the light most favorable to the non-moving party. Id. at 1866. In a key passage, the Court concluded that

The witnesses on both sides come to this case with their own perceptions, recollections, and even potential biases. It is in part for that reason that genuine disputes are generally resolved by juries in our adversarial system. By weighing the evidence and reaching factual inferences contrary to Tolan's competent evidence, the court below neglected to adhere to the fundamental principle that at the summary judgment stage, reasonable inferences should be drawn in favor of the nonmoving party.

Id. at 1868.

Some observers have suggested that the Court’s decision in Tolan suggests that a majority of the Court sees a need to “pull lower courts into line” and remind them that summary judgment is inappropriate when summary-judgment record contains evidence pointing in more than one direction. Certainly, the trend in recent years has been toward the earlier dismissal of cases at the 12(b)(6) or summary-judgment stage—and this has been especially true for section 1983 claims. With the opinion in Tolan, the Supreme Court reminds judges not to be too quick to dismiss; instead, courts must scrutinize the record carefully to make sure that there is no genuine issue of material fact.

Indiana Tech Law Professors Join SCOTUS Amicus Brief

Joined by the National Whistleblowers Center, we are asking the Supreme Court to grant certiorari in a case that forces whistleblowers to “pick their poison,” and may cause future whistleblowers to “hesitate before exposing wrongdoing by their employers.”

The False Claims Act, 31 U.S.C. § 3729 et seq., is designed to prevent fraud against the government and encourages whistleblowers, also known as “relators” under the act, to report fraudulent conduct by their employers. Known as a qui tam suit, the act’s sealing provision requires whistleblowers to maintain strict confidentiality during the pendency of the government’s investigation, to avoid tipping off the party under investigation and to protect whistleblowers from retaliation. 31 U.S.C. § 3730(b)(2). If liability is ultimately imposed, the government awards whistleblowers a percentage of the recovery. Importantly, however, the act provides penalties for failure to comply with the act’s sealing provision, including dismissal of a whistleblower’s personal retaliation claims under the act.

In Kalyanaram v. New York Institute of Technology, 549 Fed. Appx. 11, 14 (2d Cir. 2013), the petitioner reported allegedly fraudulent conduct by his employer, the New York Institute of Technology, and during the entirety of the government’s five-year investigation, complied with the act’s sealing provision. At the conclusion of the investigation, the New York Institute of Technology admitted wrongdoing and settled the case for $4 million.

The petitioner, however, did not receive a dime because the Second Circuit Court of Appeals dismissed the petitioner’s qui tam suit. The court held that the petitioner’s failure to disclose the qui tam suit at a separate arbitration proceeding under the parties’ collective bargaining agreement barred him, under the collateral-estoppel doctrine, from litigating his personal retaliation claim. Relying on a district-court order partially unsealing the case, the Second Circuit faulted the petitioner for electing “not to tell the arbitrator that he had filed a qui tam action,” and for not responding “to any questions . . . that bore on the claims in his federal case.”

As we wrote in our amicus brief, the Second Circuit’s decision placed the petitioner “in the precarious position of having to pick his poison: comply with the Act and risk dismissal of his personal retaliation claim, or violate the Act and face sanctions that likewise included dismissal of his claims.” This result is “contrary to the sealing provision’s express language, frustrates the Act’s broader purposes, and creates uncertainty for future whistleblowers who find themselves torn between conflicting—and irreconcilable—legal obligations.” Furthermore, the decision may deter potential whistleblowers from reporting fraudulent conduct by their employers, a result that “is not surprising . . . [because] [n]o litigants, particularly whistleblowers, should be forced to make a Hobson’s choice.”

SCOTUS: "Search Incident to Arrest" Does Not Apply to Cell Phones

In a 9–0 decision in Riley v. California, No. 13-132, ___ U.S. ___, 2014 WL 2864483 (June 25, 2014) (heard together with United States v. Wurie, No. 13-212), the Supreme Court rejected the application of the long-established “search incident to arrest” exception for law-enforcement officers to search data on a cell phone seized from an arrestee.

The Court reviewed the rationale for permitting warrantless searches of items found on or in close proximity to an arrestee (e.g. to secure a weapon, to prevent the use of something that could effectuate the arrestee’s escape, or to prevent the destruction of evidence), and concluded that data on a cell phone is different and does not implicate the interests the “search incident to arrest” exception to the warrant requirement was intended to serve.

The Court recognized the concern expressed by law-enforcement agencies that data from a cell phone can be remotely wiped clean following the phone’s seizure and opined that such a concern, if sufficiently demonstrated in the record, might support the application of an “exigent circumstances” exception to the warrant requirement. However, it noted that there is technology available for the seizing agency to prevent the destruction or alteration of data, remotely or otherwise, and, in any event, the record in the cases before it did not support such concerns.

In Riley, California police stopped the defendant for traffic violations. Weapons were found, leading to a custodial arrest. During the arrest, police seized a cell phone from Riley’s pocket. Data on the phone led to a sentencing enhancement for gang membership. Riley’s motion to suppress the fruits of the cell-phone data search was denied all the way through the California courts, based on a “search incident to arrest” theory.

In Wurie, the defendant was arrested on drug charges. A search of messages on a cell phone he was carrying led officers to his apartment. They obtained a warrant to search the apartment and found drugs, a gun, ammunition, and cash there, which they seized and used against Wurie. His motion to suppress the fruits of the warrantless search of his cell-phone data was denied in the trial court. The First Circuit reversed and vacated his conviction. The Supreme Court consolidated the two cases.

The Court’s unanimous decision already has been widely lauded as a strong statement by the Court against the unfettered invasion of privacy by law-enforcement officers, without the intervening review by a neutral and detached magistrate, at least when it comes to information maintained by a citizen in his or her private cell phone. The decision recognizes the rapidity with which a warrant can be obtained, the breadth of information that can be stored in digital form, and therefore the potential breadth and intrusiveness of a warrantless search.

The Court’s opinion provides a thorough review of the history supporting the “search incident to arrest” doctrine and the distinction between the nature of cell-phone data and items traditionally falling within this warrant exception.

In his concurring opinion, Justice Alito notes the anomalies that will result from the decision, but sees no better alternative. He specifically juxtaposes the arrest of two suspects. For the first, incident to his arrest, police find a list of names and some photos, both in hard-copy form, that give rise to criminal charges. The second arrestee has the same list of names and photos, but he has them stored digitally on his cell phone. After the decision in Riley, it would seem that the police are free to read and use the incriminating data found in hard copy without a warrant; but the same information cannot be reviewed or used against the second arrestee without a warrant, simply because he keeps it on his cell phone instead of using paper and pen.

From any perspective, the decision in Riley reflects an important statement by the Court on the right to privacy with respect to information, the vast amount and variety of information that can be digitally stored, and that could therefore be exploited through a search. It also reflects an interesting application of Fourth Amendment principles in a realm obviously not contemplated by the framers.

SCOTUS: Michigan Voters May Mandate Race-Neutral Admissions

On April 22, 2014, the Supreme Court, in its plurality opinion in Schuette v. Coalition to Defend Affirmative Action, upheld the right of Michigan voters to enact an amendment to its state constitution providing that public colleges and universities "shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin[.]"

The Michigan voters amended the state constitution in 2006 in response to earlier Supreme Court affirmative-action decisions in 2003 that had upheld the limited use of race-based admissions criteria for public universities. Specifically, the Court's 2003 decisions in Gratz v. Bollinger and Grutter v. Bollinger permitted the narrow use of race-based criteria, and upheld the application of such criteria as applied to the University of Michigan's law school, but struck down the criteria as overly broad for the University's undergraduate program.

The Sixth Circuit struck down, on equal-protection grounds, the Michigan constitutional amendment. A plurality of the U.S. Supreme Court reversed the Sixth Circuit. Justices Roberts, Kennedy, and Alito, after noting that the issue in the case did not involve the legality or merit of using race-based admission criteria, held that the equal-protection clause of the federal constitution did not provide the authority for the federal courts to intervene in the question decided by Michigan voters.

Justices Scalia and Thomas reached the same conclusion, but would have expressly overruled the principle set forth in the Court's prior precedent, which was relied on by the Sixth Circuit. Justice Breyer also concluded that the constitutional amendment should be upheld. Noting that the Court's prior cases permit, but do not require, the use of race-based admissions criteria, Breyer concluded that the ballot box was the appropriate forum for the citizenry to debate the merits of the issue.

Justices Sotomayor and Ginsburg dissented, contending that the Michigan voters had impermissibly changed the rules of the political process in a manner that burdened minorities, which required invalidation under the equal-protection clause.

GA Supreme Court Upholds Death-Penalty-Secrecy Law

It is constitutional for a state to maintain the confidentiality of the names and other identifying information of the people and entities involved in executions, including those manufacturing the drug or drugs to be used.

Or so said the Georgia Supreme Court.

In a 5–2 decision handed down May 19 voiding a stay of execution for Warren Lee Hill Jr., whose lawyers have argued is intellectually disabled, the court said that prison officials could keep private, under Georgia law, information identifying “any person or entity that manufactures, supplies, compounds or prescribes the drugs, medical supplies or medical equipment utilized in the execution of a death sentence.”

Justice P. Harris Hines, writing for the majority, concluded, “Georgia’s execution process is likely made more timely and orderly by the execution-participant confidentiality statute and, furthermore, that significant personal interests are also protected by it.”

In reaching that conclusion, Hines swept away the defense’s arguments, among others, that there existed an unconstitutional risk that Hill’s execution would constitute cruel and unusual punishment under the Eighth Amendment, and that Georgia’s secrecy statute violated the First Amendment guarantee of free speech.

Hines dismissed concerns regarding the quality control of compounding pharmacies, which increasingly produce the drugs used in lethal injections, in part by finding that a drug’s sterility is “a meaningless issue in an execution.” He said unconsciousness “will set in almost instantaneously from a massive overdose of an anesthetic, death will follow shortly afterward before consciousness is regained, and the prisoner will never have an opportunity to suffer the negative medical effects from infection or allergic reactions from a possibly non-sterile drug.”

Hines didn’t even mention Clayton Lockett, the convict who the state of Oklahoma accidentally killed two weeks earlier while trying to put him to death. After being declared unconscious during his execution, Lockett moved his head from side to side, lifted his feet off the gurney, tried to say something, groaned and mumbled, opened his eyes, and attempted to get up, all before dying of a heart attack 30 minutes later, in the execution chamber.

Dissenting, Justice Robert Benham underlined those facts and commented, “I write because I fear this State is on a path that, at the very least, denies Hill and other death row inmates their rights to due process and, at the very worst, leads to the macabre results that occurred in Oklahoma.”

Addressing the defense’s free-speech arguments, Hines wrote that “[t]o the extent that Hill seeks to turn the First Amendment into an Open Records Act for information relating to executions, his claim clearly fails.” He acknowledged that the U.S. Supreme Court has held that certain government proceedings must be open to the public, and that “many governmental processes operate best under public scrutiny,” but he focused on (1) the “longstanding tradition” of concealing the identities of people who “carry out” executions, and (2) the “significant risk” that people and entities necessary to the execution process would be “unwilling to participate” in the absence of the statutory hangman’s cloak.

Never mind that lethal drug producers do not “carry out” executions and that there’s not a “longstanding tradition” of shielding analogous producers of execution supplies, such as rope makers, bullet makers, or blade makers. Further, as Benham notes in his dissent, “The fact that some drug providers may be subject to harassment and/or public ridicule and the fact that authorities may find it more difficult to obtain drugs for use in execution are insufficient reasons to forgo constitutional processes in favor of secrecy.”

The basic problem is that the press and public can’t evaluate whether the state’s execution method violates the Eighth Amendment if they don’t know whether the drug’s raw ingredients come from a reputable producer or whether the finished product is pure and sterile—and as the Oklahoma experience taught us, such concerns are not “meaningless . . . in an execution.”

Indeed, as Megan McCracken and Jennifer Moreno, staff lawyers in the Death Penalty Clinic at the University of California, Berkeley, wrote in April for TheNew York Times, “If prison officials conceal crucial information from judges, lawyers and the public, we have only their word that the drugs will cause death in a manner that complies with the Constitution. Clearly, we can’t leave that to trust.”

Tech Workers Net Major Victory Against Anti-Competitive Practices

Workers in America’s technology industry have won an important victory for economic justice. On April 24, 2014, four of the largest technology companies agreed to settle a class action brought by 64,000 engineers and other technology workers in connection with antitrust/anti-poaching claims alleged against them. The defendants—Google, Apple, Adobe, and Intel—agreed to a record $324.5 million settlement.

As a result of secret agreements between the companies refusing to hire each other’s employees, thousands of employees suffered over the years through income limitations and reduced mobility. The employees included software engineers, application developers, product developers, quality analysts, digital artists, creative directors, web developers, and numerous others.

The settlement talks came after U.S. District Judge Lucy H. Koh for the Northern District of California certified the proposed class of plaintiffs as a class. The complaint alleged that the big tech giants conspired against workers between 2005 and 2009 to suppress worker pay by agreeing not to hire or recruit each other’s employees, and furthermore, capped pay packages to new prospective employees.

Similar settlements were recently reached with Lucasfilm, Pixar, and Intuit, for similar violations in late 2013, for $20 million. Prior to that, the U.S. Department of Justice filed lawsuits against eBay for conspiring with top executives to refuse to throw away résumés from competitors’ employees, and entering into anti-hiring agreements.

On Tuesday, April 29, 2014, the Supreme Court will hear two cases challenging the authority of police to search the contents of cell phones seized during arrest. Divided on recent decisions regarding the scope of searches incident to arrest, these cases add an additional layer of excitement and complexity due to the unique nature in which cell phones are used.

Gone are the days when phones serve the unilateral purpose of making calls—instead, smartphones are now able to track one’s location, serve as a diary or journal, an epicenter for managing finances, and a photo bank full of life’s most precious memories.
In a relevant part, the Fourth Amendment states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.”

“[E]very case addressing the reasonableness of a warrantless search [begins] with the basic rule that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.’” Arizona v. Gant, 556 U.S. 332, 338 (2009) (quoting Katz, 389 U.S. at 357).

Yet, in Riley v. California, the California appeals court ruled the warrantless search of the contents of smartphone was valid because the cell phone was “immediately associated” with the arrested individual.

There, local college student, David Riley was pulled over for an expired tag and arrested for driving on a suspended license. As his car was being impounded, two guns were found and police seized his cell phone. Without a search warrant, two searches were conducted. At the scene of arrest, the officer read the phone’s “text entries.” And, hours later, detectives downloaded material from the smartphone at the police station. The digital files containing photos, videos, and phone numbers were examined. Largely based on this evidence, Riley was identified as a gang member and later convicted of attempted murder and assault with a deadly weapon.

In the petitioner’s brief for certiorari, it argued: “[p]olice officers may conduct warrantless searches incident to arrest in order to search for weapons and to prevent the destruction of evidence. Neither of those concerns, however, [were] implicated.” Further, “warrantless searches of smart phones fail to further any legitimate law enforcement interest related to effectuating arrests. Such searches also impinge upon personal privacy to an unprecedented degree. Consequently, the Fourth Amendment’s search- incident-to-arrest doctrine should not countenance such warrantless searches.”

In reply, the respondent’s noted: “[t]he law has long recognized that it is reasonable for police to search an individual they arrest, and to seize and examine personal effects discovered during such a search. Such searches serve legitimate interests in safety, identification, and securing evidence, and the invasion of privacy involved follows from the arrest itself. These considerations justify searches incident to all valid arrests, both at the scene and later at the police station.”

In United States v. Wurie, Brima Wurie was arrested in South Boston under the suspicion of selling cocaine. During arrest, his flip phone was seized and repeatedly rang during booking. The words “my house” showed on the caller ID along with a picture of a woman and child. Using an online directory, the officers typed in the number from Wurie’s caller ID and obtained the address of the “my house” number. There, a woman and child were seen who resembled the photo from the cell phone. After obtaining a warrant, they searched the house.

Following a jury trial, Wurie was found guilty of being a felon in possession of a firearm, distributing crack cocaine, and possessing crack cocaine with intent to distribute it. He was sentenced to 262 months in prison. On appeal, the First Circuit overturned two of the three convictions and ruled the police were not justified in searching the cell phone without a warrant.

Additionally, in dicta, the panel supported its position by offering alternative to searching the phone without a warrant. For example, to protect data from being destroyed or altered, police could have turned the phone off and removed the battery. Or, placed the phone in a “Faraday bag,” which is lined to prevent electromagnetic signals from reaching the phone.

In sum, Tuesday’s cases stand to greatly alter the interpretation of the Fourth Amendment and its exceptions. The outcomes will further crystalize or erode founding principles of reasonableness and one’s expectation of privacy. Be sure to tune in!

SCOTUS Rules on Taxability of Severance Payments

In United States v. Quality Stores, Inc., No. 12-1408 (U.S. Mar. 25, 2014), the U.S. Supreme Court put to rest a decade-old battle over whether severance payments made to employees are taxable as wages under the Federal Insurance Contributions Act (FICA), which is a payroll tax used to fund Social Security and parts of Medicare. Employers and employees both pay 6.2 percent of up to $113,700 in Social Security taxes, and both pay 1.45 percent of total wages to Medicare.

In 2001, Quality Stores, Inc. declared Chapter 11 bankruptcy, shuttering its stores and laying off about 3,100 workers. The company paid many of its workers severance pay and, at the time, reported the payments as wages, paid the employer portion of the FICA taxes, and withheld the employee's portion from the payments.

Despite their actions, however, Quality Stores did not agree that the payments were wages, and sought a refund of approximately $1 million from the IRS for itself and its employees. The IRS neither allowed nor denied the refund, so the company initiated proceedings in the bankruptcy court, which granted summary judgment in the company's favor. The district court and the U.S. Court of Appeals for the Sixth Circuit affirmed the bankruptcy court's decision, holding that severance payments are not "wages" under FICA. The Sixth Circuit's opinion created a circuit split, with the Federal Circuit, Third Circuit and Eighth Circuit having already held that severance payments were "wages" under FICA. The IRS then took a writ to the Supreme Court.

In a unanimous decision (Justice Elena Kagan recused herself from the case because of her involvement in the litigation as solicitor general prior to taking the bench) the Supreme Court rejected Quality Stores' argument that the severance payments were not wages, stating that FICA's broad definition of wages as "remuneration for employment" very clearly encompassed such payments. Quality Stores had argued that text of section 3402(o) of the Revenue Code, which stated that "supplemental unemployment benefits" shall be treated "as if" they were wages, meant that the payments were not wages. The Court rejected the company's textual argument, holding that section 3402(o) did not operate to exclude the severance payments from FICA, but instead was consistent with the IRS's position that some supplemental unemployment benefits were wages, while others were not. The Court stressed that the definition of "wages" must generally be the same for both income-tax withholding and FICA taxation. Thus, the Court determined that the severance payments made by Quality Stores to its employees were properly taxed under FICA. Also, as the issue was not before it, the Supreme Court left in place a separate, limited exclusion based on Revenue Ruling 90-72, which excludes severance pay linked to receipt of state unemployment benefits.

Given the IRS's wide latitude in the Revenue Code, this might seem like a run-of-the-mill case. However, many employers and employees awaited the outcome of this case, and the IRS anticipated that a decision affirming the Sixth Circuit could have resulted in tax-refund claims against the government for more than $1 billion. Now that this question has been resolved, employers have clear guidance about their tax-withholding obligations in the event of layoffs or terminations involving severance pay.

Despite the frequency of disputes arising from off-duty police conduct, the Supreme Court has not yet determined when violent acts by police for personal reasons are private action or are instead state action, action “under color of law” under 42 U.S.C. § 1983.

The “color of law” inquiry is straightforward when a public employee is sued under section 1983 for acts taken while exercising the employee’s government powers. Generally, employment by a state or local government is sufficient to hold the defendant a state actor. But the “color of law” inquiry is more complex when a state or local government employee is off duty and acts for private reasons. The federal circuits have held that off-duty officers can still act under color of law and have identified factors a court should weigh—such as whether the officer wore a uniform, flashed a badge, used a police car, or attempted an arrest.

The absence of a national rule for determining when a police officer’s violent acts are state action or are instead private action can lead to inconsistent results. For example, the First Circuit, over vigorous dissent, held that a police officer’s privately motivated violence was not action under color of law, even though the shooter was in uniform, on duty, in a police station, and used a police-issued weapon to shoot a fellow officer. See Martinez v. Colon, 54 F.3d 980 (1st Cir.), cert. denied, 516 U.S. 987 (1995). Similarly, the Fifth Circuit held that a police chief’s privately motivated assault was not state action, even though the chief was on duty and in the station, because the fight with the plaintiff, a relative, was a personal dispute and the chief did not arrest or threaten to arrest plaintiff. Delacambre v. Delacambre, 635 F.2d 407 (5th Cir. 1981).

By contrast, the Ninth Circuit held that an off-duty officer was “acting under color of state law” when, for personal reasons, he punched another participant in a vintage-car parade. Even though the off-duty officer was not in uniform and was in a parade, by holding up his hands and telling the gathering crowd “he was a cop” and to “disperse,” the off-duty officer had invoked his law-enforcement status to keep bystanders from interfering with his assault on plaintiff. Anderson v. Warner, 451 F.3d 1063 (9th Cir. 2006).

State-law remedies—such as employee discipline or criminal prosecution—involve separate issues. But for section 1983 purposes, it is significant whether the officer was a private citizen or a state actor at the time of the conduct. If the officer was a private actor, it is less likely that a government will pay damages for harm inflicted by the officer, because the conduct had nothing to with the police officer’s job.

Because police sometimes use violence for personal goals and the federal circuits have crafted rules that can lead to inconsistent results, the next available opportunity may be time for the Supreme Court to announce a national rule to determine when personally motivated violence by a police officer is action “under color of law.”

9th Cir. Uses Heightened Scrutiny to Examine Sexual Orientation

The Ninth Circuit recently used heightened scrutiny to review an equal-protection claim based on sexual orientation. In SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014), Abbott was accused of artificially raising the price of HIV drugs. During voir dire, Abbott’s attorney used a peremptory challenge against the only self-identified gay member of the venire. SmithKline objected, and the trial court overruled the objection. On appeal, the Ninth Circuit found that “the strike was based on a discriminatory motive,” and “Batson prohibits strikes based on sexual orientation.” See Batson v. Kentucky, 476 U.S. 79 (1986) (noting the privilege of peremptory strikes in selecting a jury is subject to the guarantees of the Equal Protection Clause).

Relying on U.S. v. Windsor, 133 S. Ct. 2675 (2013), SmithKline held that classifications based on sexual orientation are subject to heightened scrutiny. SmithKline, at 484. Although Windsor cited a rational-basis case and also to cases applying heightened scrutiny to defeat section three of the Defense of Marriage Act (DOMA) on an equal-protection basis, the Ninth Circuit said “Windsor review is not rational basis review.” Judge Reinhardt began his opinion in SmithKline by noting that Justice Kennedy did not expressly announce a level of scrutiny in Windsor. In so doing, Judge Reinhardt looked at what the Supreme Court did, not what it said.

The Ninth Circuit concluded that the “lowest level of review does not look to the actual purposes of the law. Instead, it considers whether there is some conceivable rational purpose that Congress could have had in mind when it enacted the law.” For Windsor, a hypothetical reason for DOMA’s enactment was not sufficient. Windsor went further; it looked to DOMA’s “design, purpose, and effect. “ Windsor,at 2689. Moreover, Windsor’s “careful consideration of DOMA’s actual purpose and its failure to consider other unsupported bases is antithetical to the very concept of rational basis review.” SmithKline, at 482.

Additionally, “[r]ational basis is ordinarily unconcerned with the inequality that results from the challenged state action.” Normally, “words like harm or injury rarely appear in the Court’s decisions applying rational basis review.” (emphasis added). Id.Windsor, however, used these words repeatedly. The majority opinion in Windsor considered DOMA’s “effect” on eight separate occasions. Indeed, Windsor was concerned with the “resulting injury and indignity” and the “disadvantage” inflicted on gays and lesbians. Windsor, at 2693.

High Court to Weigh In on Gun Issues

Second Amendment and firearms law continues to bustle with innovation and action. Of course, not all cases regarding Second Amendment rights involve pure Second Amendment questions.

The U.S. Supreme Court recently heard arguments in United States v. Castleman, a firearms-rights case challenging the government's interpretation of the statute that bars those convicted of a "misdemeanor crime of domestic violence" from possessing guns. The state misdemeanor statute under which Castleman was convicted, as with many similar domestic-violence statutes in states around the country, does not require physical force to be proven. Castleman argued that without an element of physical force, his prior conviction did not involve "domestic violence." The case will force the Court to interpret how inclusive Congress intended to be when stripping people of their Second Amendment rights for a misdemeanor conviction.

On January 22, 2014, the Court heard arguments in another important firearms-related case, Abramski v. United States. In 2009, Bruce Abramski used his law-enforcement discount to purchase a pistol that he then shortly resold to his uncle. Though neither he nor his uncle were prohibited from possessing firearms, Abramski was subsequently charged for withholding material facts from the dealer when purchasing a firearm because he checked a box stating that he was buying the gun for himself as part of the background-check process. The challenge focuses on whether or not checking the box is material, and whether or not the background-check process and this form can make an otherwise lawful firearms transaction between two lawful firearms owners a criminal act.

In terms of direct Second Amendment action, a few petitions of certiorari are currently pending before the Court. First, National Rifle Association of America v. McCraw, is a challenge to a Texas law prohibiting the carrying of firearms by law-abiding adults under the age of 21. A second case, Drake v. Jerejian, just had its petition filed on January 9, 2014. Drake challenges New Jersey's restrictive handgun-licensing scheme, which the plaintiffs allege allows government officials unchecked discretion in deciding who has shown adequate "justifiable need" and may, therefore, exercise their Second Amendment right to carry a firearm for self-defense. This legal effort is led by Alan Gura, who successfully litigated both the Heller v. District of Columbia and McDonald v. Chicago Second Amendment cases.

We will continue to follow these, and other, firearms and Second Amendment cases in the future. Should the Court grant certiorari in either the Drake or NRA case, we could be up for a very exciting year in the world of Second Amendment litigation.

Clarification on the Use of Criminal History in Hiring Decisions

What are the requirements for employers that use criminal-history information in making employment decisions? Are employers required to take on the onerous task of individually assessing applicants to ensure that they do not discriminate against a particular group of people? Are targeted screens sufficient to avoid potential liability for discrimination?

The Equal Employment Opportunity Commission (EEOC) recently released informal discussion letters outlining what it deems to be the legal obligations of employers that use criminal-history information to make employment decisions. As it has consistently made clear, the EEOC believes that employers are at risk for Title VII liability when using criminal-history information to exclude individuals from employment, because such exclusion tends to disproportionately affect minorities. To avoid such liability and to show that its policy governing the use of criminal-history information is necessary, the EEOC has stated that the employer must perform a "targeted" screen by considering the following factors:

• the nature and gravity of the offense or offenses for which the applicant was convicted;

• the amount of time that has passed since the conviction and/or completion of the sentence; and

• the nature of the job held or sought.

The EEOC has further stated that when an employer excludes an applicant from hire or makes an employment decision based on an individual's criminal record, the employer should give the individual an opportunity to provide more facts before the employer makes a final decision, or it should otherwise perform an "individualized assessment." An individualized assessment "generally means that an employer informs the individual that he may be excluded because of past criminal conduct; provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him; and considers whether the individual's additional information shows that the policy as applied is not job-related and consistent with business necessity." There is some confusion, however, regarding whether employers must always provide an individualized assessment of every excluded applicant, and if so, under what circumstances. EEOC chair Jacqueline Berrien has provided some clarification on the EEOC's guidance and the use of individualized assessments.

According to Berrien, the EEOC does not urge or require individualized assessments of all applicants and employees, but rather encourages the following two-step process: 1) that employers use a "targeted" screen of records, which considers the nature of the crime, the time elapsed, and the nature of the job; and 2) that employers perform an individualized assessment for those individuals who are screened out, which according to Berrien, provides a way for employers to ensure that they are not mistakenly screening out qualified applicants or employees based on incorrect, incomplete, or irrelevant information, and to allow individuals to correct errors in their records.

While individualized assessments are strongly encouraged, the EEOC makes clear that employers may decide to never conduct an individualized assessment if they are able to demonstrate that their targeted screen is job-related and consistent with business necessity. The individualized assessment is simply "a safeguard that can help an employer to avoid liability when it cannot demonstrate that using only its targeted screen would always be job related and consistent with business necessity." Further, whether an employer's policy on using criminal-history information is job-related and based on business necessity, as well as whether excluded individuals should be given an individualized assessment, only becomes relevant when the policy results in a disparate discriminatory impact upon a protected group of people.

Currently, 15 states authorize same-sex marriage. The majority of states, however, have provisions similar to the now invalid section 3 of DOMA, which defined marriage as between a man and a woman. Georgia, for example, has a constitutional amendment that prohibits both same-sex marriage from occurring within its borders and the recognition of legal same-sex marriages from other states. Ga. Const. art. I, § 4, ¶ I; O.C.G.A. § 19-3-3.1

The Supreme Court recognized in Windsor that, under state provisions such as these, “same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways,” such as "forc[ing] them to follow a complicated procedure to file their state and federal taxes.” Windsor, 133 S. Ct. at 2694. The IRS eased the burden for same-sex couples filing federal income taxes, but let states decide how married couples should file state tax returns. Oregon, which has a constitutional ban against same-sex marriage, has decided to recognize valid out-of-state same-sex marriages. A same-sex couple living in Oregon, but married in another state, may jointly file an Oregon tax return.

At least six states, however, require same-sex couples to file as singles: Arizona, Utah, Oklahoma, Kansas, Nebraska, and Georgia. In those states, a person in a same-sex marriage who filed a federal tax return as married must recompute Federal Adjusted Gross Income (AGI) and itemized deductions (if applicable) as if the person had filed a single federal return. They must also calculate taxes based on rates for single filing status, or if qualified, head-of-household tax rates. To “recompute” the AGI, couples must complete at least three separate federal tax forms (one married and two single) because the state tax forms use the AGI as a starting point. Georgia has actually released guidance on how same-sex couples should file.

Not only will there be more work to prepare for tax season, but also it will cost more for the couple to prepare and the state to process. For couples with income disparities, this burden could amount to thousands of dollars. Hopefully, other states will follow Oregon’s lead.

Keywords: civil rights litigation, tax, Windsor, DOMA

— Stanford L. Moore, 3L, Case Western Reserve University

December 16, 2013

New York Experiments with ADR for Section 1983 Cases

The Southern District of New York asked the New York City Law Department and a group of civil-rights plaintiffs’ attorneys to develop an experimental plan for improving judicial efficiency in handling 42 U.S.C. § 1983 claims. Since 2011, the Section 1983 Plan has offered expedited discovery and settlement procedures for actions against New York City police. The plan is limited to claims seeking (1) only monetary relief for (2) allegations of false arrest, malicious prosecution, or excessive force by (3) New York police and the city itself.

The plan provides for expedited discovery and lists documents both sides must exchange. Mandatory mediation or settlement conferences follow discovery.

• Under the plan, at the same time they serve the complaint, plaintiffs must also serve releases for arrest and medical records.

• The defendant has a longer time to respond to the complaint—80 days instead of the 21 days allotted under the Federal Rules.

• Within 28 days of the defendant’s answer, both parties must exchange specified “Limited Discovery.” No extensions are granted.

• Parties must engage in settlement discussions while all other discovery is stayed.

• Within three months of the answer, if the parties have not dismissed the case, it goes to a court-approved mediator or a settlement conference before a magistrate judge.

Proponents say the plan improves judicial efficiency by streamlining discovery and mandating alternative dispute resolution. The plan’s expedited and limited discovery rules shorten the litigation and ensure that litigants quickly obtain information useful for evaluating the case. This makes meaningful settlement discussions possible at an earlier stage in the litigation. Combined with its mandatory mediation or settlement conferences, the plan’s discovery rules encourage early settlement, which helps reduce the district-court docket.

Critics of the plan believe it is flawed because it is not well-suited for complex cases. Complex cases with substantial injuries, critics believe, not only require more extensive discovery than the plan permits, but are also unlikely to be resolved in mediation. Thus, limiting discovery and requiring all plan cases to go through early settlement discussions may actually create more delay as opposed to reducing it. Critics also claim that the plan impairs due process. The plan has an automatic waiver of plaintiffs’ rights to recover for physical or mental injuries where the plaintiffs have failed to serve a medical release with the complaint. In some cases, this may violate plaintiffs’ due-process rights.

Section 1983 Claims: Municipalities Ignored Need to Train Employees

Federal courts have been interpreting a 2011 Supreme Court decision as having placed high hurdles in the way of claims against a municipality for failing to train its employees to avoid “obvious” violations of constitutional rights. In Connick v. Thompson, 131 S. Ct. 1350 (2011), the Supreme Court addressed the question of whether a municipality may be liablethrough a single incident of unconstitutional activity if the injury was obviously likely to occur in the absence of training employees. This theory is rooted in City of Canton, Ohio v. Harris, 489 U.S. 378, 390 n. 10 (1989). In Connick,a district attorney's office failed to train its attorneys to turn over exculpatory evidence, resulting in the plaintiff’s conviction. 131 S.Ct. at 1356, 1366. The Supreme Court held that a plaintiff must show that the municipality acted with deliberate indifference—that is, the municipality was on notice of its failure to train and disregarded the likelihood of potential constitutional violations. The plaintiff also must show that the alleged failure to train caused the injury suffered.

While it may seem “obvious” that failing to train district attorneys to turn over exculpatory evidence would lead to constitutional violations, the Supreme Court found that there was no obvious need for training. The plaintiff could not establish a single-incident theory of liability partly because the district attorneys had prior professional training, and therefore the district attorney’s office was not on notice. The Court also reaffirmed that respondeat superior does not apply to section 1983 claims.

Since Connick, only one circuit court has found that a plaintiff could establish an obvious need to train government employees. In Conn v. City of Reno, 591 F.3d 1081 (9th Cir.) cert. granted, 131 S. Ct 1821 (2011), aff’d on remand, 658 F.3d 897 (9th Cir. 2011), the Ninth Circuit found that the plaintiffs provided sufficient evidence to survive summary judgment in a single-incident case. In Conn, a woman who committed suicide while in jail awaiting trial had previously threatened and attempted to commit suicide while in the custody of police—yet the police did not report her actions. The 9th Circuit reasoned that failing to train police officers how to identify and when to report suicide risks produces a highly predictable consequence that police officers will fail to respond to serious risks of suicide and that constitutional violations will occur.

Connick reasoned that the attorneys’ law-school “professional” training supported its holding that the district attorney’s office was not on notice of a failure to train its employees to avoid constitutional violations. Connick’s reasoning was extended to nurses by the District of New Jersey. In Rosario v. Doe, 2013 WL 3283903 at *9 (D.N.J. June 25, 2013), the plaintiff-prisoner alleged that the prison nursing staff was inadequately trained when he suffered toe amputation as a result of a diabetic foot ulcer. The district court noted that “like the attorneys in Connick, the nurses employed by [the prison] completed nursing degrees and were licensed.”

The Vestige of DOMA

Ohio is among the majority of states that do not recognize same-sex marriage. See Ohio Rev. Code § 3101.01(C)(2) (“Any marriage entered into by persons of the same-sex in any other jurisdiction shall be considered and treated in all respects as having no legal force or effect in this state and shall not be recognized by this state.”); see alsoOhio Cons. Art. XV, § 11 (“Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.”).

It may be intuitive that a full-faith-and-credit argument would enable the recognition of lawful, same-sex marriages from other states. However, the Defense of Marriage Act (DOMA) section two, which is still intact, allows states to refuse to recognize same-sexmarriages performed under the laws of other states. See28 U.S.C. § 1738C.Although “full faith and credit shall be given in each State, to the public . . . records . . . of every other State,” Congress “may by general laws prescribe the manner in which such . . . records . . . shall be proved, and the effect thereof.”U. S. Cons. arts, 3 & 4. Accordingly, a full-faith-and-credit argument is dead in the water.

However, “the state-law shoe" has now dropped in Ohio. Obergefell v. Kasich, No. 1:13-CV-501, 2013 WL 3814262, 2013 U.S. Dist. LEXIS 102077 (S.D. Ohio July 22, 2013) (quoting United States v. Windsor, 133 S. Ct. 2675, 2705 (2013)). Federal District Judge Timothy S. Black recently ordered Ohio to recognize a lawfully married same-sex-couple status on a death certificate. Residents of Ohio, James Obergefell and John Arthur have been in a committed relationship for more than 20 years. John, a hospice patient, suffers from a fatal disease, and is likely to die soon. Wanting “the world to officially remember and record their union as a married couple,” the couple flew to Maryland (a state that recognizes same-sex marriage) and married on a runway at the airport.

Recently, the couple persuaded the court, on equal-protection grounds, to grant an injunction — ordering Ohio to list the couple as married on John’s death certificate and to list James as John’s surviving spouse. Although marriage is typically in the province of the states, the federal Constitution places limits on restrictions that states may impose. Loving v. Virginia, 388 U.S. 1, 12 (1967) (statute limiting marriage to same-race couples violated equal protection and due process); Zablocki v. Redhail, 434 U.S. 374, 383 (1978) (statute depriving marriage from persons owing child support violated equal protection).

Although section two of DOMA stands, courts must determine whether state laws mandating that only a man and a woman have the legal right to marry violate equal protection. The likely conclusion is that states lack a rational basis to refuse recognition of lawful same-sex marriages from other states. Section two of DOMA may soon become moot.

A Post-Windsor World

When the U.S. Supreme Court issued its decisions in Windsor v. United States, 133 S.Ct. 2675 (2013) and Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) the lives of millions of lesbian, gay, and transgendered (LGBT) people in this country changed for the better. Unfortunately, many of them live in states where these decisions will have, for now, limited effect.

Let’s look at the Windsor decision. The Court decided that section three of the Defense of Marriage Act (DOMA) is unconstitutional. DOMA violates “basic due process and equal protection principles applicable to the Federal Government. The Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.” Windsor (quoting Department of Agriculture v. Moreno, 413 U. S. 528, 534–35 (1973)).

We now have 14 marriage-equality jurisdictions in the United States. Seven states recognize civil unions and domestic partnerships. The Windsor decision does not include those couples, and they will not, for now, be able to enjoy full federal benefits.

There are 29 states that ban recognition of lesbian and gay relationships either through statute, constitutional amendment, or both. New Mexico is the only state in that group that does not explicitly prohibit recognition. That state’s attorney general announced that the state must recognize same-sex marriages entered in other states.

The Perry decision has less of an immediate effect. Essentially, the Court sent the case back because the Proposition 8 proponents who brought the appeal did not have standing to do so. The decision makes California marriage-equality state number 13.

On June 28, 2013, the Office of Personnel Management (OPM) issued a memorandum stating it would extend benefits to the spouses of legally married lesbian and gay federal employees. A key part of the OPM’s decision is to accept the state of celebration to determine the marriage’s legality. Married lesbian and gay federal employees that live in non-recognition states are covered by this decision.

The secretary of defense announced on June 26, 2013, that officials will move forward to make all benefits available to all military spouses, including medical, dental, interment at Arlington National Cemetery, and with-dependent basic allowance for housing. The Department of Defense will look to the state of celebration to determine if the marriage is valid. This is a good decision because most military bases are located in states that prohibit recognition.

Windsor’s effect on immigration was immediate. A deportation hearing being held in New York was stopped within minutes of the Court issuing its decision. The first green card was approved on July 10. The Department of Homeland Security announced it would “review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”

The Social Security Administration is another matter. The Social Security Administration Act uses the law of the state in which the couple is living at the time application is made to define marriage. This creates a different problem for married lesbian and gay couples. Congress must change the law for couples living in non-recognition states to receive benefits. A court challenge will likely be mounted if Congress fails to act.

Another federal agency, the Internal Revenue Service (IRS), has yet to issue any guidance. Couples living in the 14 marriage-equality jurisdictions will be treated as married. The IRS does not have a definition of spouse or marriage. The agency may decide to use the state of celebration to decide whether to recognize same-sex marriages. In that case, all married lesbian and gay couples will be recognized regardless of where they live. If they do not, litigation will ensue when a married same-sex couple from Vermont moves to Ohio and finds they have lost federal rights.

Lambda Legal and the American Civil Liberties Union (ACLU) have filed or will file lawsuits in states that prohibit recognition of same-sex marriages. The plaintiffs in a pending suit in Illinois have asked the court for a quick decision given the outcome in Windsor. The Pennsylvania attorney general has decided not to defend the state’s law in a suit filed July 9, 2013, by the ACLU. A third party may step in to defend the law but that effort may not be allowed under the Hollingsworth v. Perry decision. That third party will need to have a “dog in the fight” to clear a standing challenge.

This is an exciting time in a continuously evolving area of law. The Windsor and Perry decisions have given the LGBT legal community significant resources to use in challenging discriminatory laws in the states. The coming months will be very interesting.

— Joan Burda, attorney at law and adjunct professor, Case Western Reserve University School of Law

July 2, 2013

Scholarship Preview: The New Conflicts Law

The growth of international markets has led to more and more transactions that fall within the jurisdiction of multiple legal systems. Today, an ordinary consumer product is likely to be manufactured in a low-wage, low-tax jurisdiction, and will be sold to one or more distributors and retailers before reaching the consumer. If something goes wrong along the way, many legal systems can plausibly claim authority to regulate the transaction.

Despite the explosion of multi-jurisdictional commerce, governments do not agree on how regulatory authority should be divided. In the United States, Congress’s reliance on private actors to enforce the law in statutes such as the Securities Exchange Act and Title VII makes informal regulatory coordination difficult. While a public official might negotiate an agreement with his or her foreign counterparts about how to divide up enforcement authority (or refrain from enforcing the law entirely for reasons of comity), such coordination is not possible when enforcement authority is allocated to be dispersed by private actors. As a result, ordinary civil litigation in U.S. courts is increasingly likely to lead to political backlash from foreign governments who object to “extraterritorial” regulation by the United States. Prototypically, a foreign government complains that litigation in U.S. courts undermines the effectiveness of its regulatory regime or its ability to conclusively determine the rights and liabilities of the parties to a dispute.

In The New Conflicts Law, David L. Noll, an assistant professor of law at Rutgers University, identifies a new and potentially problematic response to these problems in U.S. law. Beginning in the 1980s, the Supreme Court has recognized a set of ex ante rules that limit private regulatory enforcement in U.S. courts, and in so doing, head off conflicts between U.S. litigation and foreign regulatory systems before they can occur. The trend began in the 1980s and 1990s with decisions requiring near total deference to forum-selection agreements and arbitration clauses, even when they are contained in standard-form contracts of adhesion. Though the reasons the Court offered for enforcing such agreements are questionable, the doctrine prevents intergovernmental conflicts caused by the combination of permissive jurisdictional rules and multi-jurisdictional economic activity. The conflict-minimizing trend has continued in recent decisions such as Morrison v. National Australia Bank, 130 S. Ct. 2869 (2010), which limited section 10(b) of the Securities Exchange Act to frauds that culminate in a transaction in the United States, and Kiobel v. Royal Dutch Petroleum, 133 S. Ct. 1659 (2013), which reversed the decades-old consensus that the Alien Tort Statute permits courts to hear claims for torts that occurred outside the United States. While difficult to justify as an exercise in traditional statutory interpretation, Morrison and Kiobel provide multinational businesses with a way to manage their exposure to U.S. regulation—and thereby prevent regulatory conflicts.

Notably, the new conflicts law takes a very different approach to regulatory conflict than twentieth-century doctrine and scholarship. Common-law doctrines such as forum non conveniens and the choice-of-law rules in the Restatement (Second) of Conflict of Laws determined which legal system governed a transaction through an all-things-considered analysis of the transaction and the affected governments’ regulatory policies. The new conflicts law, by contrast, makes the applicability of U.S. regulation turn on a limited number of specific, objectively identifiable facts.

Are these developments a good thing? Though the new law unquestionably minimizes regulatory conflict, Noll questions whether it will actually improve welfare. Economically inclined scholars have argued that laws that permit private actors to choose the regulatory regime governing their affairs encourage governments to enact efficient laws, and thus promote a beneficial form of regulatory competition. But the new conflicts law is insensitive to the conditions for successful regulatory competition, Noll claims, and is more likely to result in a transfer of wealth to powerful economic actors than it is to improve welfare.

Noll also argues that the new law reflects a questionable approach to the enforcement of U.S. regulatory policy. In his view, there is not necessarily a single correct answer to how U.S. law should balance the need to assert regulatory power with the need to accommodate other governments. But the new law often sets up restrictions on U.S. regulatory authority that are effectively permanent, and thus prevents democratically accountable actors from taking responsibility for that tradeoff.

Ultimately, the new conflicts law is likely to impact any litigator whose work involves the enforcement of regulatory statutes in federal or state court. The article will appear this fall in the the Stanford Journal of Complex Litigation and can be downloaded free of charge from the Social Science Research Network.

— David Noll, assistant professor of law, Rutgers University School of Law

June 18, 2013

Second Circuit's Latest Statement on Pattern or Practice

Under Teamsters v. U.S., do disparate-treatment defendants need to fight (statistical) fire with (statistical) fire? In May 2013, a divided Second Circuit answered no.

In U.S. v. City of New York, 2013 WL 1995782 (May 14, 2013), the United States brought suit against the City of New York's fire department on the grounds that its reliance on written examinations in selecting entry-level firefighters amounted to a pattern or practice of pervasive discrimination against black candidates, in violation of Title VII. An organization of black firefighters (the Vulcan Society, Inc.) intervened and asserted a discriminatory-treatment claim as well. Following International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336 (1977), the district court held that the city's failure to defeat the statistical evidence showing discriminatory treatment commanded summary judgment.

In a complex and divided opinion, the majority of the appellate panel reversed the district court's grant of summary judgment, in part, on the grounds that requiring the city "to meet or undermine the Intervenor's 'statistical evidence'" was "too narrow a view of how a defendant may rebut a prima facie case." Instead, the majority held that "the City was entitled to produce whatever evidence it had to rebut the prima facie case of discriminatory treatment."

Judge Pooler, writing in dissent, disagreed. "Once the plaintiff has used statistical evidence to make out its prima facie case," Judge Pooler reasoned, "the employer must then 'defeat the prima facie showing' by addressing those statistics." Judge Pooler also noted that failing to require such a showing lessens the burden on pattern-or-practice defendants and that a number of other circuits recognize the specific burden to defeat a plaintiff's statistical proof under Teamsters. Unless the Supreme Court weighs in, however, defendants in the Second Circuit may choose to fight fire as they like: They can successfully rebut a prima facie inference based on statistics with "any evidence that is relevant."

Gender Stereotyping vs. Sexual-Orientation Discrimination

While Title VII of the Civil Rights Act of 1964 does not protect employees from sexual-orientation discrimination, plaintiffs are enjoying increasing success by characterizing their claims as impermissible gender stereotyping. In April, a Virginia federal court granted summary judgment against a male employee who alleged discrimination based on his perceived feminine characteristics and mannerisms. Henderson v. Labor Finders of Virginia, Inc., No 3:12cv600 (Apr. 2, 2013). However, a federal court in Florida reached the opposite conclusion when a male employee alleged sexual-orientation discrimination in his original complaint but stated a claim for sex discrimination based on gender stereotyping in an amended complaint. Anderson v. Napolitano, 108 FEP 1144 (Feb. 8, 2010). While these cases point to seemingly contradictory results, they illuminate how subtle differences in the manner of discrimination can lead to different results in gender-stereotyping litigation.

Raymond Henderson began work for Labor Finders of Virginia, Inc., in April 2010. Due to perceived discrimination based on his effeminate nature, Henderson filed a claim with the Equal Employment Opportunity Commission (EEOC) and a subsequent lawsuit. In Henderson's pleadings, he alleged that managers refused to assign him work because he did not meet "certain requirements" to be a good representative of Labor Finders. Henderson also presented evidence that project supervisors called him a "woman" and "gay," while other managers said that he was not a "real man" but was "a woman pretending to be something else." Although the court acknowledged that Henderson's evidence was somewhat vague, it refused to dismiss his claims. Instead, it pointed to "numerous examples of unfavorable employment actions taken against him . . . that could plausibly be viewed as discrimination on the basis of sex" in denying summary judgment.

The Anderson case, by contrast, resulted in a different outcome. Richard Anderson began work as a federal air marshal in 2000 and was promoted to supervisory federal air marshal in 2001. Upon his promotion, Anderson alleged that his superiors learned of his sexual orientation and began subjecting Anderson to various epithets. Anderson initially filed a charge alleging sexual-orientation discrimination with the EEOC. The charge was quickly dismissed as beyond the scope of Title VII. Anderson then filed a civil lawsuit on a pro bono basis, followed by an amended complaint alleging sex discrimination based on gender stereotyping after he obtained counsel. While Anderson plead that his superiors attributed "images and characteristics of effeminate behavior to him" by stating that he was "too gay" and "too flamboyant," the court held that such comments merely related to Anderson's sexual orientation. The court also refused to characterize Anderson's coworkers' alleged lisping and talking around him in a "stereotypically flamboyant voice" as evidence of gender stereotyping. As a result, the court concluded that any harassment Anderson experienced was not "because of sex" but rather on account of his sexual orientation. Anderson's claims were dismissed accordingly.

The juxtaposition of the Henderson and Anderson cases underscores evidence critical to surviving summary judgment in a Title VII claim based on sexual-orientation discrimination. For example, plaintiff's counsel representing a woman who contends she has been discriminated against because of her sexual orientation may consider focusing on coworkers' comments to the effect that she is "too macho," acts too aggressively, and/or doesn't dress in a feminine manner. Evidence that a particular plaintiff was called various homophobic epithets or stereotypes typically does not suffice to ward off summary judgment and may undermine other, solid evidence of gender stereotyping.

Defense counsel, by contrast, will typically endeavor to characterize such claims as sexual-orientation discrimination and will tend to highlight evidence that suggests coworkers and/or managers treated the plaintiff differently because they believed him or her to be gay. While not desirable, evidence of homophobic slurs, vulgar language, or similar epithets should be highlighted to recast the behavior as having been based on (perceived) sexual orientation.

As additional claims of this variety are brought under state and local laws, further development of a more analytical evidentiary standard is bound to occur.

Hawaii Bill Would Protect Narrow Class of Traditional Outlets

A panel of Hawaii lawmakers approved last week a reporter’s shield bill that would eliminate all protections for free newspapers and magazines and for newspapers that distribute content exclusively online. It also would expand the exemptions that government officials could invoke to overcome the shield.

Hawaii’s current shield law, which allows journalists to refuse to testify in court about sources or unpublished information, is set to expire June 30, 2013. The bill would amend that law based on negotiations among lawmakers who want to make the law permanent but disagree on its scope. It’s heading now to the full legislature for a vote.

Clayton Hee, chairman of the Hawaii Senate Committee on Judiciary and Labor, added the language to the bill that would narrow the shield’s protections. He said the narrowing was necessary because judges need clear standards to determine who qualifies for the shield. When questioned about the language, though, Hee said journalists are not always truthful or accurate, adding, “I don’t think the shield law is a mechanism which necessarily prevents errors.”

(Side note: That’s not the purpose of the reporter’s shield. The purpose is to protect the free flow of information necessary for democratic self-government.)

The current shield law applies broadly to traditional and non-traditional news outlets and journalists, including bloggers. In contrast, the bill would limit the shield to a narrowly defined class of traditional outlets and journalists. For example, it defines “journalist” as a person who reports the news “for financial gain or livelihood,” it defines “magazine” as a publication “with a paid circulation,” and it defines “newspaper” as a publication “with a paid circulation” that is “printed.”

A number of journalism stakeholders have noted that those definitions fail to take into account the evolving nature of the media landscape. For example, Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, wrote in a letter to Hawaii lawmakers that the bill “ignores the proliferation of citizen-journalists who report on issues of public concern for no compensation and the rise of new media [that] are not printed on paper and do not charge customers for their content.”

Indeed, prominent Hawaii bloggers such as Ian Lind, and online news outlets such as Big Island Video News and The Hawaii Independent, would not receive protection under the bill. For that matter, nor would ProPublica, which has won two Pulitzer Prizes, if it were ever subpoenaed in Hawaii in connection with any newsgathering there. Meanwhile, it’s unclear whether Honolulu Civil Beat would receive protection. The bill excludes online newspapers but not online magazines, and Civil Beat bills itself as an online “news organization.”

Aside from the legal implications, the bill would de-incentivize innovation in news production and distribution by limiting shield protections to traditional outlets and journalists. The risk is that the shield would not cover innovative forms of production and distribution. This is troubling because the digital revolution has dispersed the production of news and forced traditional outlets to reinvent themselves to survive.

— Jonathan Peters, Frank Martin Fellow, School of Journalism, University of Missouri

April 5, 2013

Ninth Circuit to Hear Oral Arguments on Reparative Therapy Ban

Last year, California governor Jerry Brown signed SB 1172, a law requiring state licensing agencies to discipline licensed mental-health professionals who provide reparative therapy, also know as “sexual orientation change efforts,” to lesbian, gay, and bisexual (LGB) minors. On April 17, 2013, the U.S Court of Appeals for the Ninth Circuit will hear oral arguments in two lawsuits challenging SB 1172.

Reparative therapy, as defined by SB 1172, focuses on “efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.” Reparative therapy is generally provided by a licensed mental-health provider (LMHP), a non-licensed counselor, a religious minister, or a layperson. Therapy may include individual counseling sessions, group therapy, and, in faith-based settings, prayer and scriptural study. Historically, reparative therapy used physically invasive techniques such as electroshock therapy, hormone therapy, and surgery. While these invasive techniques have largely been rejected by even proponents of reparative therapy, it is worth noting that a named plaintiff in one of the lawsuits challenging SB 1172 describes being prescribed pharmaceuticals “to help control sex drive” as a part of the therapy.

The two lawsuits challenging SB 1172, prepared by the non-profit organizations the Pacific Justice Institute (PJI) and the Liberty Counsel, allege violations of the First Amendment’s guarantees of free speech and free exercise of religion. It also alleges violations to parents’ fundamental liberty interest in raising their children as they see fit. The law was challenged on constitutional grounds almost immediately upon its enactment, despite Governor Brown being assured that the bill was constitutional by California Legislative Counsel Bureau, a non-partisan public agency.

Two judges in the U.S. District Court for the Eastern District of California heard the PJI and Liberty Counsel motions for preliminary injunction, and subsequently issued divergent rulings. Judge William Shubb granted the PJI’s motion for a preliminary injunction, limited to the three named plaintiffs. Judge Shubb found that the plaintiffs were likely to succeed on the merits of their First Amendment free-speech claims. In contrast, Judge Kimberly Mueller denied Liberty Counsel’s motion for a preliminary injunction, finding that the plaintiffs were not likely to succeed on the merits of any of their claims. The Liberty Counsel appealed Judge Mueller’s decision to the Ninth Circuit, and filed an emergency motion for temporary injunction pending appeal. On December 21, 2012, the Ninth Circuit granted the emergency motion for temporary injunction, which stayed SB 1172’s January 1, 2013, enactment until the appeal could be heard. California appealed the order granting preliminary injunction in the PJI case. The Ninth Circuit consolidated the two cases for oral arguments scheduled for April 17, 2013.

The Ninth Circuit’s decision turns primarily on the issue of whether SB 1172 will prevent licensed mental-health professionals from discussing reparative therapy at all, or only from practicing reparative therapy with minors. In Conant v. Walters, the Ninth Circuit struck down a statute that prohibited doctors from discussing medical marijuana with their patients, holding that it was an unconstitutional content-based restriction on doctors’ free-speech rights. Conant v. Walters, 309 F.3d 629, 639 (9th Cir. 2002). A number of amicus briefs have been filed in the Ninth Circuit. Notably, Erwin Chemerisnky, and other First Amendment scholars filed a brief arguing that SB 1172 does not implicate the First Amendment and, in the alternative, if it does, it is content-neutral and should be subject to rational-basis-level scrutiny. Some scholars also argued that the courts should defer to the legislative fact-finding underlying the statute in determining whether the state has a legitimate interest in regulating reparative therapy.

Similar attempts to limit the practice of reparative therapy are taking place in other states. For example, a New Jersey legislator promised to introduce a bill similar to SB 1172 in his state’s legislature. Just weeks after Governor Brown signed SB 1172 into law, the Southern Poverty Law Center filed an administrative complaint against a social worker in Illinois who provides reparative therapy. Additionally, on November 27, 2012, the Southern Poverty Law Center filed a lawsuit on behalf of plaintiffs in New Jersey who allege that reparative-therapy practitioners caused them economic and emotional harm. The California cases, however, are the first to be litigated, and are certain to set the tone for the rest of the upcoming reparative-therapy litigation.

— Caitlin Sandley, Case Western Reserve University School of Law

January 14, 2013

Supreme Court to Hear Voting Rights Act Constitutional Challenge

In 1965, thousands of protestors in Alabama marched from Selma to Montgomery to protest policies and practices in the South that had kept minorities from voting. Months later, President Lyndon B. Johnson passed the Voting Rights Act, one of the landmark civil-rights achievements of the past century.

Now, 50 years after the act’s passage, the Supreme Court is considering a constitutional challenge to section 5 of the act in Shelby County Ala. v. Holder, 133 S. Ct. 594 (2012). Section 5 prohibits certain "covered jurisdictions"—predominantly counties and localities with a history of anti-minority election practices—from changing their election practices or programs without first obtaining "preclearance" or federal approval. The provisions, which were reauthorized in 2006, were originally meant to curb the racially motivated practices of the time, such as the assessment of literacy tests and poll taxes. More recently, the Department of Justice has used preclearance to block states such as Texas and South Carolina from implementing voter-identification laws.

In May 2012, the D.C. Circuit in Shelby County, Ala. v. Holder, 679 F.3d 848 (D.C. Cir. 2012), upheld section 5, ruling that Congress, under the pre-existing formula for determining "covered jurisdictions," did not exceed its authority under the Fourteenth and Fifteenth Amendments and, therefore, did not violate the Tenth Amendment and Article IV of the Constitution. Consequently, the city of Calera, which is located in Shelby County, could not move forward with a redistricting plan that the Department of Justice deemed discriminatory and based on unreliable data.

The D.C. Circuit found that section 5's requirements were congruent and proportional because Congress took into account (1) the pervasiveness of serious racial discrimination in covered jurisdictions, (2) section 5's ability to address these issues, and (3) the adequacy of alternatives such as the ability to file a lawsuit challenging discriminatory voting practices pursuant to section 2 of the Voting Rights Act. The Court showed deference to Congress, noting that "these are quintessentially legislative judgments, and Congress, after assembling and analyzing an extensive record, made its decision: Section 5's work is not yet done." Shelby County, 679 F. 3d at 873.

The Court has yet to hear arguments from either side. Shelby County will likely argue that section 2 provides a sufficient remedy to preventing racially motivated practices and that section 5 can only be sustained based on evidence of “a widespread pattern of electoral gamesmanship showing systematic resistance to the Fifteenth Amendment.” In addition, it will likely echo the D.C. Circuit's dissent in contending that Congress's 2006 renewal of the preclearance requirement exceeded its enforcement power by using an outdated formula to identify covered jurisdictions. This formula, according to the dissent, "lacks any rational connection to current levels of voter discrimination,” and "is a remarkably bad fit with Congress’s concerns.” Id. at 883. The majority opinion addressed this argument by noting that the data, though old, still accurately singled out jurisdictions where discrimination occurs when combined with section 5's bail-in and bailout provisions.

While the D.C. Circuit rejected Shelby County's arguments, there is reason for optimism among opponents of section 5. Though the Supreme Court declined to address the constitutionality of section 5 in NAMUDNO, it did hint at the possibility of striking down the law in the future. Justice Roberts, in the NAMUDNO majority opinion, wrote that "the evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance," and that "the statute's coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions."

A win for Shelby County could have a serious impact on voting laws. The Department of Justice frequently uses section 5 to block election practices that may have adverse consequences on minority voters, such as the voter ID laws in Texas and South Carolina. The Department of Justice has also used preclearance to block early voting reductions in states such as Florida and void redistricting maps, such as the one in Shelby County or a recent statewide redistricting plan in Texas.

Striking section 5 would mean that parties would have to challenge potentially discriminatory voting practices in court under section 2, with the burden falling on those challenging the laws, not the states and localities. Congress could also amend the Voting Rights Act to apply preclearance to the entire country, though recent gridlock in Washington could stand in the way of such an amendment. Indeed, almost 50 years after the marches from Selma to Montgomery, the Supreme Court could significantly weaken one of the crowning legislative achievements of the Civil Rights Movement.

— Suhas Subramanyam, Northwestern University School of Law

December 18, 2012

Prison Suicide Case Clarifies Deliberate Indifference

In suits alleging deliberate indifference to serious medical needs, in violation of 42 U.S.C. § 1983, plaintiffs must plead and prove that individual defendants had actual, subjective knowledge of a substantial risk of harm to which they were deliberately indifferent. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). Defendants often seek to defeat such claims by attacking plaintiffs’ allegations or proof as to individual defendants’ subjective knowledge. In Bock v. County of Sutter, Case No. 2:11-cv-00536-MCE-GGH, 2012 U.S. Dist. LEXIS 124699, 2012 WL 3778953 (E.D. Cal. Aug. 31, 2012), Judge Morrison C. England, Jr. of the Eastern District of California rejected the contention that, in a case alleging deliberate indifference to a risk of suicide, the Farmer subjective standard requires that a defendant be aware of an inmate’s express threat to commit suicide. Instead, subjective knowledge can be pled and proven from the symptoms and circumstances known to correctional staff and medical providers.

Supreme Court Strikes Down Key Parts of Anti-Eavesdropping Law

On November 26, 2012, the U.S. Supreme Court denied hearing the Illinois state’s attorney’s petition to for “legal clarification and guidance” on the Seventh Circuit’s decision overturning key parts of the Illinois Anti-Eavesdropping Statute, which criminalized citizens recording police officers doing their jobs in public.

On May 8, 2012, the Seventh Circuit Court of Appeals ruled that prosecutors in Illinois could not enforce the Illinois statute, which made it a felony to audio record “all or any part of any conversation” without all parties’ consent. The American Civil Liberties Union (ACLU) of Illinois had created a plan to openly make audio-video recordings of police officers performing their duties in public places and speaking at volume audible to bystanders. Concerned that videographers would be prosecuted under the anti-eavesdropping statute, the ACLU filed this pre-enforcement action against Anita Alvarez, the Cook County state’s attorney. The Seventh Circuit ordered a preliminary injunction blocking enforcement of this statute as applied to audio recording working on-duty law-enforcement officers. In response to the Supreme Court ruling, the ACLU of Illinois requested the federal court judge in the Northern District of Illinois to create a permanent injunction, barring state’s attorneys from prosecuting anyone under the statute.

In Baker, two males applied for a marriage license from the state of Minnesota. The clerk of court denied their application. Upon review, the Minnesota State Supreme Court held that prohibiting gay marriage was not irrational or invidious discrimination. The court’s justification was that the traditional meaning of marriage is between a man and a woman, and the purpose of marriage is procreation and child rearing. The U.S. Supreme Court denied certioraribecause, at first glance, there was no substantial federal question.

In Adams, a court clerk issued a marriage license to a homosexual couple, Adams and Sullivan. Adams was a citizen of the United States, but Sullivan was a citizen of Australia. Subsequently, Adams petitioned the U.S. Immigration and Naturalization Service (INS) to have his partner, Sullivan, classified as an immediate relative. The INS denied the petition, and the Ninth Circuit affirmed its denial. The Los Angeles Office of the U.S. Department of Justice persuaded the court. In its brief, it wrote, “a marriage between two males is invalid for immigration purposes.” Furthermore, it “cannot be considered a bona fide marital relationship since neither party to the marriage can perform the female functions in the marriage.” The Ninth Circuit also affirmed the INS’s order to deport Sullivan in 1985. Sullivan v. Immigration & Naturalization Service, 772 F.2d 609 (9th Cir. 1985) [membership required].

In 1996, Congress passed DOMA, which defined marriage as the “legal union between one man and one woman.” Recently, cases in federal courts have been subjected to the same flawed reasoning and homophobic disdain as in Baker and Adams. There are at least 10 federal cases fighting the constitutionality of DOMA, and in particular, section 3, which codifies the non-recognition of same-sex marriages for all federal purposes. Some of the notable purposes include government-employee insurance benefits, Social Security survival benefits, and filing of joint tax returns. To put this into perspective, the Human Rights Campaign counts over 1,000 benefits, rights, and protections that are denied to same-sex couples.

With the current wave of lawsuits challenging DOMA, the act’s days are numbered. Nine states and the District of Columbia allow gay marriage. Additionally, four of the nine states have legalized gay marriage as of the recent election. Of the four, voters approved gay marriage in three of the states: Maine, Maryland, and Washington. In the fourth state, Minnesota, the voters rejected a constitutional ban on gay marriage, throwing into question the applicability of Baker. With Golinksi facing review by the Supreme Court, the long-standing error, that is, the rule in Adam, could potentially be put to rest. This would terminate an erroneous line of cases with flawed justifications.

Furthermore, the quicksand upon which DOMA stands is quickly swallowing the shaky foundation. The Department of Justice is no longer the driving force that is defending DOMA. The Republican-held House of Representatives and its five-member standing body, the Bipartisan Legal Advisory Group (BLAG), is now guarding the facade. Because it believes that section 3 of DOMA cannot be constitutionally applied to same-sex couples whose marriages are legally recognized under state law, the Department of Justice decided to abandon the defense of DOMA.On February 23, 2011, President Barack Obama placed one of the final nails into DOMA’s coffin. He asserted that section 3 of DOMA could not survive the scrutiny used for classifications based on sex. With the tides turning against DOMA, the fight for marriage equality continues gaining strength, especially as Illinois is pushing legislation for same-sex marriage that could take effect as early as the new year.

Ninth Circuit to Hear Oral Arguments in Three Important Gun Cases

The U.S. Court of Appeals for the Ninth Circuit issued an order scheduling oral arguments in three major Second Amendment cases: Richards v. Prieto, Peruta v. County of San Diego, and Baker v. Kealoha. Arguments will take place at the San Francisco Ninth Circuit location on December 6, 2012.

Richards v. Prieto, originally titled Sykes v. McGinness, began as a challenge to the concealed-carry licensing policies and procedures of Sacramento and Yolo counties in California. Though the case, brought by Second Amendment Foundation and the Calguns Foundation, led to Sheriff John McGinness and Sacramento County settling out of court and going “shall-issue,” Yolo County and Sheriff Edward Prieto held steadfast (hence the change-in-case caption).

On appeal from the district court’s grant of Sacramento County’s motion for summary judgment, the case will ask the Ninth Circuit to decide whether or not a licensing authority may “condition the issuance of permits to exercise the fundamental Second Amendment right to bear arms, and classify applicants with respect to the exercise of that right, upon that authority’s discretionary assessment of need and moral character.”

Peruta v. County of San Diego is similar to Richards, but narrower. Peruta challenges San Diego County Sheriff William Gore’s concealed-carry licensing policies by asking the court to find that Sheriff Gore must accept self-defense as good cause for the issuance of a license to carry. Peruta is backed by the National Rifle Association.

Baker v. Kealoha, is a case filed by the Hawaii Defense Foundation’s founding director and president, Christopher Baker, against Honolulu Chief of Police Louis Kealoha, the Honolulu Police Department, the City and County of Honolulu, the State of Hawaii, and Hawaii Governor Neil Abercrombie. The suit alleges that Hawaii’s firearm regulations are unconstitutional because Hawaii state law mandates that citizens may be provided licenses to carry only when the issuing authority finds that the applicant “appears suitable” and “exceptional circumstance” exists or “a need or urgency has been sufficiently indicated.”

All three cases will lead to the defining of law dealing with the “bear” aspect of the right to keep and bear arms within the Ninth Circuit’s jurisdiction. Depending on how things go on December 6, we may see one or even all of these cases seeking review from the Supreme Court.

My Big Gay Southern Wedding: Marriage Equality and the Arc of Justice

Perhaps more than any other social-justice movement right now, the movement for marriage equality has achieved consistent legal momentum. On February 7, 2012, the Ninth Circuit held that California’s Proposition 8, a voter referendum that repealed same-sex marriage in California, is unconstitutional. Perry v. Brown, 2012 WL 372713 (9th Cir.). The precedential significance of the rather narrow ruling remains to be seen, and the prospects of the case going to the Supreme Court are uncertain. But conversations about same-sex marriage have been reinvigorated in recent months by the Ninth Circuit’s decision: Washington, New Jersey, and Maryland’s legislative approval of same-sex marriage bills, anti-marriage equality referendums such as North Carolina’s Amendment One, and President Obama’s announcement that he has “evolved” and come to support marriage equality. These developments have gotten me thinking about my own marriage.

On November 25, 2011, I got to marry the coolest person I know in front of 120 friends and family members. My wife and I were married by two Baptist ministers in a small church in downtown Birmingham, Alabama. Everyone beamed at the flower girls, cried during the vows, ate and drank too much at the reception, and, in standard Southern fashion, spent the next day watching football. My wedding was perfect beyond my wildest expectations, and the fact that my marriage is not legally recognized in Alabama, Ohio (our current home), or 39 other states made no difference that day.

Of course the legality, or illegality, of my marriage matters most other days when I silently deliberate between using “partner,” “wife,” or self-preserving lies in everyday conversations with colleagues, professors, and strangers; when I file my taxes as “single,” and when I speculate about the practical significance and legal weight our powers of attorney will actually have in the unfortunate event that my wife or I face death or a medical emergency. The law makes a difference much of the time.

But the lives of legally marginalized individuals are sprinkled with moments, like my wedding, when community, faith, and love trump the law and temporarily banish systemic oppression. Those moments are evidence of Martin Luther King Jr.’s “arc of justice” that moves in the direction of an ideal time and society where the law has caught up with what is right. Realistically, I am certain I will not see the end of the “arc of justice” in my lifetime, and who knows if anyone ever will, but as a new member of the legal community, I ask myself all the time what my role is in continuing the momentum of all justice movements along the arc and in acknowledging and celebrating those few, brief moments when justice prevails.

— Caitlin Sandley, Case Western Reserve University School of Law

July 9, 2012

Victory Fighting Criminalization of People Living with HIV

On June 29, 2012, after serving five years in prison, David Plunkett was set free, following the New York Court of Appeals’ rejection of an aggravated-assault charge based upon his being HIV-positive. The state’s high court had remitted the case back to Herkimer County Court for resentencing in its ruling June 7, 2012, that an individual’s saliva, like other body parts, cannot be considered a deadly weapon or dangerous instrument under New York penal law. The ruling further develops and clarifies New York law, explaining that bodily substances that are naturally present do not support such a prosecution based on aggravated assault.

In September 2006, David Plunkett was arrested following an altercation with police during which he allegedly bit one of the police officers. Because he subsequently revealed to the officers that he has HIV, Plunkett faced assault charges, including the charge of aggravated assault upon a police officer, a felony premised on use of a dangerous instrument (under N.Y. Penal Law § 120.11), with the prosecutor—and ultimately the trial court—deeming Plunkett’s saliva-coated teeth to satisfy the definition of a “dangerous instrument.”

Plunkett entered a guilty plea but specifically preserved for appeal his claim that his saliva was not a dangerous instrument. He argued for an extension or clarification of the court’s prior holding in People v. Owusu, 98 N.Y.2d 398 (1999), that “an assailant’s teeth [cannot] be deemed [a deadly instrument] within the definition of the Penal Law,” as the teeth “come with” the individual. According to the trial court, Plunkett’s teeth were not the deadly instrument; rather it was his “saliva, infected with the AIDS virus that is the substance that is a dangerous instrument. . . .” The court opined that Plunkett’s teeth served as the vehicle for injecting his saliva into the officer’s body, and the Appellate Division rejected Plunkett’s counterargument—but the New York Court of Appeals reversed. The court of appeals specifically noted that, as in Owusu, Plunkett’s “teeth came with him,” and therefore could not satisfy the definition of a dangerous instrument. The court pointed out that holding otherwise would result in a “sliding scale of criminal liability” based on each person’s size, weight, strength, and general ability to cause harm with their bodies.

The case had drawn friend-of-the-court support from Lambda Legal, writing on behalf of additional amici the American Academy of HIV Medicine, the Association of Nurses in AIDS Care, the Center for HIV Law and Policy, and the HIV Medicine Association, and joins other efforts against criminalizing the lives of people with HIV.

Many states currently have laws that add or enhance criminal penalties based on the presence of the human immunodeficiency virus. The amicus brief urged the court of appeals to rule out the aggravated-assault charge, because a fair reading of the law does not support interpretation of saliva or teeth as a dangerous instrument, and because the charge fuels public misunderstanding of how HIV is transmitted, contributes to stigmatizing people with HIV, and undermines important public-health goals—because the federal Centers for Disease Control and Prevention verifies that contact with saliva alone has never been shown to result in transmission of HIV.

NLRB AGC Strikes Down Overbroad Workplace Social Media Policies

As social-media use by employees continues to present new challenges in the workplace, the NLRB Acting General Counsel (AGC) recently released a report providing guidance on employer policies in this area. (Operations Management Memo (Memo), May 30, 2012, available at.) The report discussed seven recent cases, providing examples of lawful and unlawful provisions in employers’ social-media policies.

Under section 7 of the National Labor Relations Act, employees have the right to organize and bargain collectively, and to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” (29 U.S.C. § 157.) Generally, social-media rules are unlawful if “they would reasonably be construed to chill the exercise of section 7 rights.” (Memo, p.3.) Rules that are ambiguous regarding section 7 activity, and that contain no limiting language that would clarify that the rules do not restrict such activity, are unlawful. (Id.) Some of the major categories of social-media rules that the AGC found unlawful include:

Prohibiting employees from releasing or sharing confidential employee or company information: The AGC found that such rules, without any limiting language, would reasonably be interpreted as prohibiting workers from discussing or disclosing information about their wages and other conditions of employment. (Id. at pp. 4–5, 7, 9–10.) Employees not only have a right to discuss this information with each other, but also to seek help from third parties—such as unions, media outlets, and government agencies. (Id. at 15, 18–19.)

Prohibiting employees from posting photos and other content without obtaining the owner’s permission, and from using the employer’s logos and trademarks without permission: The AGC found that workers would reasonably interpret these rules to prohibit the use of photos and videos of workers engaging in section 7 activities. For example, under such policies, an employee might have reservations about posting photos of a union strike with picket signs containing the employer’s logo, thus restricting his right to engage in section 7 activities. (Id. at p.7, 11.)

Instructing employees to think carefully about “friending” coworkers on social media sites: According to the AGC, without limiting language, such a rule was unlawfully overbroad because it would discourage communications among workers, including discussions about the terms and conditions of their employment. (Id. at pp.8–9.)

Warning employees to avoid picking fights and discussing “objectionable or inflammatory” topics online: The AGC struck down this rule, based on the reasoning that discussions about working conditions or unionism could potentially become heated and controversial. (Id. at p.10.) The rule would thus discourage workers from engaging in “robust but protected discussions” about their workplace rights. (Id.)

Prohibiting employees from commenting on pending legal matters: The AGC found this provision to be unlawful because it specifically restricts employees’ rights to discuss potential claims against the employer. (Id. at p.10.)

Prohibiting employees from making offensive, inappropriate, disparaging or defamatory comments about the employer either online or offline: This rule was unlawful because workers would reasonably construe it to prohibit protected criticisms of the employer’s labor policies or its treatment of employees. (Id. at pp. 8, 17.) For example, such a rule could be used to prevent an employee from posting and commenting on Facebook about wage violations in his or her workplace— which is protected section 7 activity. However, such a rule could be lawful if it provided sufficient examples of plainly egregious conduct— such as harassment or bullying— such that workers would understand that the rule did not restrict their section 7 rights. (Id. at 20.)

It is also worth nothing that in several of the cases, the AGC determined that the inclusion of a “savings clause” in the employer’s social media policy— stating that the policy would be administered in compliance with section 7 of the NLRA— was insufficient to cure the ambiguities in the unlawful provisions. (Id. at pp. 9, 12, 14.) On the other hand, arguably overbroad rules could still be lawful if they provide “sufficient examples of prohibited conduct, so that, in context, employees would not reasonably read the rules to prohibit Section 7 activity.” (Id. at p.20.)

As this report is only the opinion of the AGC, who is responsible for prosecuting alleged violations of the NLRA, it is unclear whether the report reflects the position of the NLRB and how much weight should be given to the report. Employers and employees should be on the lookout for further guidance in the future from the NLRB or the courts regarding social-media policies in the workplace.

Nordyke: The Case That Never Ends Finally Ends—For Now

On June 1, 2012, the Ninth Circuit Court of Appeals filed an opinion on the second rehearing en banc in Nordyke v. King, No. 07-15763 (Nordyke VI). The opinion, written by Judge Susan P. Graber, still did not address the issue that has been lingering in the Ninth Circuit since the U.S. Supreme Court issued its opinion in Disrict of Columbia v. Heller, 554 U.S. 570 (2008), i.e., what level of scrutiny applies to Second Amendment claims brought within the Ninth Circuit.

Often referred to as “the Alameda gun show case” (and sometimes as “the case that doesn’t end” because of its long and tangled procedural history), Nordyke involved a constitutional challenge on First and Second Amendment grounds to an Alameda County, California, ordinance that bans firearms from county property, including the Alameda County fairgrounds. The casehas been litigated for over 12 years.

In this particular run before the en banc panel, the Ninth Circuit determined that “[i]t is undisputed that Plaintiffs are legally authorized to sell firearms and that, if allowed to conduct a gun show on County property, they would offer for sale only firearms that they lawfully could sell under federal and state statutes.” What was different this time around was that Alameda County now believes its ordinance does not prohibit gun shows from being held on its property with firearms present and available for “meaningful physical inspection” by potential buyers.

The court decided to hold Alameda County to its interpretation of the ordinance found in its initial and supplemental briefing before the three-judge panel and used during oral argument before the en banc panel, wherein counsel for Alameda County asserted that the plaintiffs could offer firearms for sale with the requirement that the firearms be secured by a “sturdy cable” attaching the firearm to a fixture when not in the actual possession of authorized participants. Based on that concession with regard to Alameda County’s interpretation of its ordinance, the court found that the plaintiffs could not state a viable Second Amendment claim. The Ninth Circuit also affirmed the district court’s ruling on the First Amendment claim for the reasons given by the three-judge panel in its previous opinion. See Nordyke v. King, 644 F.3d 776, 791–94 (9th Cir. 2011) (Nordyke V).

Judge Diarmuid F. O’Scannlain wrote a concurrence that agreed with the majority’s outcome but not their method. O’Scannlain believes that the standard-of-scrutiny issue should have been addressed and stated that he would readopt the three-judge panel’s substantial-burden test from Nordyke V.

Judge Sandra S. Ikuta’s concurrence also took issue with the majority’s failure to address the appropriate standard of review, and seemingly chastised them for using the “rule of thumb” standard and failing to “ascertain how the requirement that firearms be tethered to a table actually burdens gun shows,” or the nature of the fit between this burden and the government’s alleged purpose of promotion of public health and safety by helping to reduce injuries and deaths caused by firearms.

So, after all of the hullabaloo involved in the 12 years of litigation in Nordyke, the case ends with a concession by Alameda County, and no standard of review for Second Amendment cases in the Ninth Circuit is somewhat anticlimactic. However, the majority did note that “[s]hould the County add new requirements or enforce the ordinance unequally, or should additional facts come to light, Plaintiffs or others similarly situated may, of course, bring a new Second Amendment challenge to the relevant laws or practices.” Given this case’s convoluted history, it would not be at all surprising to see it before the Ninth Circuit en banc panel again another 12 years from now.

Activists Appeal Finding that $340 Handgun License Is Not Excessive

On April 18, 2012, the Second Amendment Foundation appealed the U.S. District Court for the Southern District of New York’s order in Kwong v. Bloomberg. In Kwong, the district court held that New York City’s $340 fee for a “residence premises” handgun license (needed to lawfully possess a handgun in New York City) was not excessive and that a state statute allowing New York City to depart from the $10 ceiling on such licenses for virtually all other areas of New York State did not violate the Equal Protection Clause of the Fourteenth Amendment.

The lawsuit, filed by seven individual plaintiffs, the Second Amendment Foundation, and the New York State Rifle & Pistol Association, challenged: (1) New York City’s $340 fee on the ground that it impermissibly interfered with the plaintiffs’ Second Amendment rights; and (2) New York State’s exemption of New York City from the $10 fee ceiling on the ground that this exemption violated the Equal Protection Clause of the Fourteenth Amendment.

Ruling on cross motions for summary judgment (filed before discovery was exchanged), the district court found that the government may impose a fee designed to defray the administrative costs of regulating a protected activity. Although the district court recognized that “it is possible to conceive of fees that are impermissible because they are so exorbitant as to deter the exercise of the protected activity,” it found plaintiffs had presented “no evidence that the fee has deterred or is likely to deter any individual from exercising his or her Second Amendment rights[.]” Moreover, the court found there was no real dispute regarding the proposition that the $340 fee was less than New York City’s expenses related to issuing residential handgun licenses. Accordingly, the district court held “the $340 fee is a permissible fee imposed on the exercise of constitutionally protected activities and does not violate the Second Amendment.” The district court also alternatively found that the fee survives intermediate means-end scrutiny because the $340 application fee effectively defrays expenses that are substantially related to the important governmental objective of preventing violence.

With respect to the equal-rights argument, the district court concluded that rational-basis review is appropriate because the scheme does not involve any suspect classifications (e.g., race, sex, religion) and imposes no burden on the Second Amendment right to keep and bear arms. The court explained that New York State’s law did not burden the Second Amendment right to keep and bear arms because it, unlike the New York City law, identified no fee and that under the state law, the city “could choose to set the fee lower than the $3–$10 range applicable to the rest of the State.” The district court held that New York had a rational basis for exempting New York City from the general statewide fee ceiling because it allowed New York City to more closely match the fee to its expenses.

CO High Court Expands Right to Bear Arms to Public Universities

On Monday March 5, 2012, Coloradans’ constitutional right to bear arms was expanded when the Colorado Supreme Court invalidated portions of the University of Colorado Board of Regents’ weapons-control policy pertaining to the possession of firearms on the basis that the policy violates the Colorado Concealed Carry Act (CCA). The case was decided en banc and affirms the decision of the Colorado Court of Appeals. The lawsuit, The Regents of the University of Colorado, et al. v. Students for Concealed Carry on Campus, LLC, et. al, 2012 CO 17, 2012 WL 691538 (Colo. Mar. 5, 2012), filed by the Students for Concealed Carry on Campus and three representative plaintiffs, marks a turning point in the fight for the right to bear arms on college campuses.

The case began in December 2008 with the filing of a complaint by the Students for Concealed Carry on Campus and three representative plaintiffs who attended the University of Colorado, Colorado Springs, and University of Colorado, Denver. The complaint alleged that the University of Colorado Board of Regents’ weapons-control policy (adopted March 17, 1994), which prohibits the carrying of firearms on campus by all persons except for certified law-enforcement personnel or those who have written permission from the chief of police, violated the CCA (passed in 2003) and the state constitution’s right to bear arms. The plaintiffs, all of whom asserted they held valid concealed-carry permits under the CCA, wanted to possess a handgun for self defense when traveling to, from, through, or on the campuses of the University of Colorado.

The trial court dismissed the plaintiffs’ action for failing to state a claim for relief. However, the Colorado Court of Appeals reversed, holding that the plaintiffs stated a claim for relief under the CCA, which expressly applies to all areas of the state and under article II, section 13 of the Colorado Constitution, which provides Coloradans with the individual right to bear arms in self-defense. The Colorado Supreme Court affirmed the appeals court’s decision on statutory grounds, citing the CCA’s pronouncement of field preemption in the area of regulations relating to the concealed carrying of firearms in Colorado to create consistency in the law.

Particularly, the Colorado Supreme Court held that, “The Concealed Carry Act’s comprehensive statewide purpose, broad language, and narrow exclusions show that the General Assembly intended to divest the Board of Regents of its authority to regulate concealed handgun possession on campus.”

Consequently, the Colorado Supreme Court determined that the guidelines enumerated in the CCA dictate which restrictions may be placed on concealed carry of firearms in Colorado. The CCA specifically provides that a concealed-carry permit issued pursuant to the CCA does not authorize a person to carry a concealed handgun: (1) into a place where the carrying of handguns is prohibited by federal law; (2) onto the real property or into any improvements erected on a public elementary, middle, junior high, or high school; (3) into a public building at which security personnel and devices screen each entrant for weapons and require any weapons to be left in their possession while the entrant is in the building; and (4) any place where a private-property owner, private tenant, private employer, or private business entity has rights to exclude handguns. Conspicuously absent from this language are colleges and universities. On that basis the court reasoned that the General Assembly divested the Board of Regents of its authority with regard to concealed firearms.

Carrying concealed firearms (when accompanied by a validly issued concealed-carry permit) on college campuses has been a hotbed of discussion in recent years with state legislatures around the country debating legislative action on the issue. This case may have far-reaching implications as states with similar legislative pronouncements on record are potentially open to a challenge. As a demonstration of the stakes in this case, a partial list of the amici include: The Brady Center to Prevent Gun Violence, Colorado Ceasefire Capitol Fund, the National Rifle Association, Rocky Mountain Gun Owners, The County Sheriffs of Colorado, and the Second Amendment Foundation.

— Matthew S. Erickson, 3L at Pepperdine University School of Law, Malibu, CA

May 16, 2012

Hate Crimes Sentencing in New Jersey Stirs Debate

As the sentencing date for Dharun Ravi on bias-intimidation charges approaches in the notorious Rutgers webcam-spying case, lawyers, advocates, and the public at large continue discussing laws against hate crimes. On May 21, 2012, Mr. Ravi is scheduled to be sentenced on multiple counts carrying up to 10-year prison terms.

At the time of the conviction, the New York Times invited a varied slate of lawyers, law professors, and advocates, including ABA Civil Rights Litigation Committee Cochair Hayley Gorenberg, to opine on hate crimes laws in the widely read "Room for Debate" online opinion page.

Implicit Bias Theory Rejected in Pippen v. Iowa

Iowa’s executive branch did not discriminate against African Americans in its hiring and promotion policies. That was the conclusion of an Iowa district court on April 17, 2012, in Pippen v. Iowa. The Pippen plaintiffs—a class of current and former African American employees and would-be employees of Iowa’s various executive-branch agencies—plead discrimination under a novel theory of “implicit bias.” The court was skeptical that the plaintiffs’ theory could give rise to an actionable claim, particularly under the facts of this case.

The plaintiffs’ complaint alleged that the State of Iowa and 37 departments of the executive branch denied them equal opportunity for employment. However, the plaintiffs did not allege deliberate discrimination. Rather, they raised a novel claim that the state’s failure to follow equal-employment-opportunity laws resulted in effective discrimination. In other words, rather than carrying out deliberate discrimination, the plaintiffs alleged that Iowa’s lax enforcement of equal-opportunity rules opened the door for the implicit biases of hiring officers.

Although the court was sympathetic to the plaintiffs’ position, and acknowledged that “the law of equal rights will evolve,” it ultimately found that the plaintiffs’ “novel claim” lacked adequate support or justification in this case. Nor was the court convinced that any actual discriminatory effect existed. The court pointed to several shortcomings in the plaintiffs’ arguments, including:

There was no single agency responsible for monitoring the state’s equal-employment laws. The state’s 37 agencies each made their own hiring decisions. Some 2000 managers were responsible for hiring decisions statewide. In discussing this point, the court drew on the Supreme Court’s recent decision in Wal-Mart v. Dukes, 564 U.S. ____ (2011).

The plaintiffs’ expert produced weak evidence of implicit bias. He primarily relied on the Implicit Association Test, an uncontrolled Internet study. No results specific to Iowa were produced. The court found that the plaintiffs’ evidence of implicit bias merely amounted to “conjecture, not proof of causation.”

The plaintiffs’ novel theory was that the state abdicated its duty to prevent discrimination. However, the court held that to find discrimination, the plaintiffs must point to a specific employment practice that lead to the discrimination. The plaintiffs’ made no attempt to find such a practice. The court determined that “The ‘entire hiring process’ is not a particular employment practice. To that extent, the claim under the Iowa statute fails factually.”

It was not clear that there was in fact a disparate impact on African Americans. Black workers in Iowa do better in the public sector than the private. And in some agencies, blacks out-performed whites. That the inverse was true in certain agencies did not convince the court that the plaintiffs had produced adequate evidence of systemic discrimination, particularly because the plaintiffs’ made no effort to address alternative explanations such as statistical chance.

As in the Wal-Mart case, the court found that there was simply inadequate evidence to conclude that the state had ignored equal-employment rules and allowed implicit bias to produce discriminatory results. The evidence of discriminatory effect was thin. And the legal claim of inaction by the state plus implicit bias by managers was simply untested and—at best—premature.

Fletcher v. Haas: Rights of Permanent Resident Aliens

In Fletcher v. Haas, (D. Mass. Mar. 30, 2012),the U.S. District Court for the District of Massachusetts held that permanent-resident aliens are included amongst “the people” as the term is used in the Second Amendment to the U.S. Constitution.

The individual plaintiffs in this case were Christopher Fletcher and Eoin Pryal, two British immigrants who had both been granted permanent-resident-alien status and who both had significant family, employment, and community contacts within the United States. Wishing to possess firearms in their own homes, both Fletcher and Pryal completed the Massachusetts Basic Firearms Safety Course, which is required under Massachusetts’s law to apply for a firearms identification card. M.G.L.A. 140 § 131P. Unlike most states, in Massachusetts, a firearms identification card is required to simply “own, possess, or purchase a firearm, rifle, shotgun or ammunition.” M.G.L.A. 140 § 129C. Therefore, any denial of a firearms-identification-card application is effectively a complete ban on the possession of firearms.

Here, the applications of both Fletcher and Pryal were denied based upon the citizenship requirement that Massachusetts law imposes upon applicants for a firearms identification card. M.G.L.A. 140§ 129B(1)(vii).

Fletcher and Pryal subsequently raised both equal-protection and Second Amendment challenges to the citizenship requirement. The Second Amendment challenge was based upon the argument that because the firearms identification card is a prerequisite to simple possession of a firearm in the home for self defense, any barrier to acquisition of a firearms identification card touches upon what the Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008), described as the “core” of the Second Amendment.

The court spent quite a bit of time on their analysis of the term “the people.” Specifically addressing the historical trend of non-citizens petitioning the government for redress of grievances, they noted that “[o]ther rights guaranteed by the Constitution to ‘the people’ were freely exercised by non-citizens at the time of the founding.” They went on to point out that the only instance in which the term “the people” was considered by the high court to be synonymous with “citizens” was in the infamous slavery case of Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 404 (1856).

The court also cited the more recent case of United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), for the proposition that lawful resident aliens “receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.”

Having thereby established that aliens with sufficient contacts do generally fall within the constitutional meaning of “the people”, they next turned to an analysis of the holding in Heller, which the state argued could be read to only apply to citizens. The court found it illustrative that while the opinion in Heller did use varying terms including “citizens,” “Americans,” and “law abiding citizens” throughout, it specifically addressed the question of the scope of the term “the people” and reaffirmed Verdugo-Urquidez by finding that the term “unambiguously refers to all members of the political community, not an unspecified set.”

The court also did a rather brief analysis of the post-Heller level-of-scrutiny holdings. However, the court largely avoided this still-developing area of jurisprudence by stating that the regulation in question, where lawful resident aliens are concerned, does not pass constitutional muster under any possible standard of review.

And while the court ultimately based its ruling upon the Second Amendment claim, they did briefly touch on the equal-protection claim, citing to the Massachusetts Supreme Judicial Court holding in Finch v. Commonwealth Health Ins. Connector Auth., 959 N.E.2d 970, 984 (Mass. 2012), for the broad proposition that “extending fundamental rights to citizens but not to lawful permanent resident aliens would present state equal protection problems subject to strict scrutiny.”

One final note of interest for future cases is the fact that, while the issue raised in Fletcher was only the issuance of firearm identification cards, the final judgment order enjoined enforcement of any citizenship limitation in the issuance of any firearms permits:

Enforcement of Massachusetts General Laws chapter 140, sections 121–131P against Plaintiffs solely on the basis of their permanent resident alien status is declared to be in violation of the Second Amendment to the United States Constitution and the Defendants are hereby enjoined from denying Plaintiffs Fletcher and Pryal any firearm permits or licenses on that basis.

This broad statement not only invalidates the citizenship limitation on the issuance of firearms identification cards for purchase and in-the-home possession but also for the issuance of Class A and Class B carry permits under M.G.L.A. 140 § 131(d)(v).

Federal Court Finds Second Amendment Applies Outside the Home

Plaintiffs Raymond Woollard and the non-profit organization, Second Amendment Foundation, filed the lawsuit in July 2010 after he was denied a permit to carry a firearm outside of his home. The suit challenged Maryland’s permit scheme on the grounds that it facially violated the Second Amendment and the equal-protection clause of the Fourteenth Amendment because it required, among other things, that the secretary of the state police determine whether the applicant has “good and substantial” cause to wear, carry, or transport a handgun.

The case required the court to address two important questions: (1) whether the Second Amendment’s protections extend outside the home, and (2) whether the requirement concerning “good and substantial” reason was constitutional.

Relying on United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011), the court found that the burden was on the government to prove that a substantial government interest was furthered by the permit scheme. The court found that the government failed to meet that burden because Woollard’s asserted right, i.e., the right of a law-abiding citizen to carry a firearm outside the home for self-defense purposes, was deserving of intermediate scrutiny because it was “non-core” but still protected Second Amendment activity. The opinion also set forth the idea that the right to bear arms is not limited to the home, and reasoned that it could not be because the Second Amendment also protects the militia and hunting, and neither of these is a homebound activity.

Under the application of intermediate scrutiny, the court determined that Maryland’s statute failed because it was overbroad. Though the court agreed that public safety is undoubtedly an important governmental interest, the statute did not “advance the interests of public safety by ensuring that guns are kept out of the hands of those adjudged most likely to misuse them, such as criminals or the mentally ill.” Instead, the court determined that the Maryland statute merely served as a rationing system and was therefore not tailored to the problem it was supposed to address. The court also noted that “[a] citizen may not be required to offer a ‘good and substantial reason’ why he should be permitted to exercise his rights. The right’s existence is all the reason he needs.”

The court declined to address the equal-protection claim because it was essentially a rehash of the Second Amendment claim, and the Second Amendment claim provided an adequate basis for resolution of the case.

The case will likely be appealed to the Fourth Circuit, and may possibly end up being the case that the Supreme Court finally decides to review and address the “in the home” issue that seems to be plaguing Second Amendment jurisprudence since its opinion in District of Columbia v. Heller, 554 U.S. 570 (2008), which held that held that the Second Amendment conferred an individual right to keep and bear arms.

Ninth Circuit Strikes Down Proposition 8

The decision by the Ninth Circuit Court of Appeals in Perry v. Brown on February 7, 2012, voided on federal constitutional grounds the results of the state ballot initiative that had retracted marriage rights from same-sex couples in California.

The court validated the singular importance of marriage as a venerated, easily understood, resonant institution (citing texts authored by Shakespeare, Abraham Lincoln, and Groucho Marx, amongst others). Other marriage-equality cases around the country will surely reference the Perry court's extensive explication of the legal and social significance of this civil institution.

Supreme Court Rules GPS Tracking Requires Warrant

On Monday, January 23, 2012, the Supreme Court released its opinion in United States v. Jones, the Court’s first look at global positioning system (GPS) tracking and the Fourth Amendment. At issue was the government’s use of a GPS device to track the movements of a suspected drug dealer, Antoine Jones. The government secretly attached the GPS device, without warrant, to Jones’ Jeep Grand Cherokee. The government then tracked the vehicle’s movements over four weeks and gathered 2,000 pages of location data. The information obtained in the search was subsequently used to secure an indictment against Jones.

Ultimately, Jones fared better than the Court’s jurisprudence. While the justices all agreed that the government had violated the Antoine Jones’s Fourth Amendment rights, they were sharply divided as to why.

Subpoenaed Tweets

The American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation have filed an appeal in a fight over Twitter user information. The government has issued subpoenas to Twitter and other web companies in connection with its WikiLeaks investigation. U.S. District Judge Liam O’Grady has refused to unseal court orders and legal motions connected with the investigation.

ACLU staff attorney Aden Fine said that “This case is just one example of the unfortunate recent trend to make our court processes less open and transparent. Fine argues that “Secret court orders and secret court dockets should not be permitted, except in extraordinary circumstances.”

In a similar case, the ACLU is representing an individual who is battling a subpoena issued by a Boston prosecutor to Twitter seeking the user’s personal information. The user posted information that the ACLU classified as “publicly available information” about Boston police officers. The information was released following the ouster of Occupy Boston protestors. Over the ACLU’s objections, the judge held a secret hearing and sealed the record. The subpoena itself was quite broad, apparently seeking private information on anyone who used the #doxcok3 hash tag. (Hash tags are used to label tweets and make them more easily searchable.)

Twitter, for its part, has taken to opposing these types of information requests, and even notifying its users when a request for information has been made.

Keywords: civil rights litigation, Twitter, Privacy, ACLU

— Mark K. Stansbury, The Stansbury Law Firm, a Columbus, Ohio, firm focused on the needs of startup companies in the technology sector.

December 5, 2011

Nordyke Goes En Banc . . . Again

On November 28, 2011, the Ninth Circuit Court of Appeals issued an extremely brief order that pulled the rug from under Second Amendment litigators practicing within its jurisdiction. The 57 word order granted rehearing en banc in Nordyke v. King, No. 07-15763, 2011 WL 5928130 (9th Cir. Nov. 28, 2011), and left everyone wondering two things: 1) Will the Nordyke case ever actually end? And, 2) will the Ninth Circuit ever make a firm decision on a standard of review to be applied in Second Amendment cases?

The Nordyke case involves a challenge to an Alameda County ordinance that bans firearms from county property, including the Alameda County fairgrounds. The case, which questions the validity of the ordinance on First and Second Amendment grounds, was brought by gun-show promoters Russell and Sallie Nordyke and others, and has been going on for approximately 12 years.

In 2009, the Ninth Circuit three-judge panel who heard the case held that the individual right to keep and bear arms applied to state and local officials as well as the federal government (i.e., the Ninth Circuit incorporated the Second Amendment before the Supreme Court did so in its landmark decision in McDonald v. City of Chicago, Ill., 130 S. Ct. 3020 (2010)), but it also held the Alameda ordinance constitutional.

That 2009 three-judge panel opinion incorporating the Second Amendment against the states was vacated when the Ninth Circuit decided to rehear the case en banc. That en banc rehearing was then stayed pending McDonald.

After the ruling in McDonald, the en banc court kicked the case back to the three-judge panel for further consideration, and the panel of three issued a ruling setting the “substantial burden” test for Second Amendment questions in the Ninth Circuit on May 2, 2011. The November 28, 2011, order makes Nordyke one of the few cases to garner en banc review more than once.

Oral arguments are set to take place before the rehearing en banc panel during the week of March 19, 2012, but an exact date has not yet been set. Second Amendment litigators in the Ninth Circuit can only hope that Nordyke, and the standard-of-review question, will finally be laid to rest after that hearing and subsequent opinion.

Facebook and FTC Near Deal on Privacy

The Wall Street Journal and New York Times report that Facebook is nearing a deal with the Federal Trade Commission (FTC) over allegations of deceptive trade practices. In late 2009, Facebook changed its privacy settings. This resulted in the release of previously secret user information such as profile pictures, gender, and current city. The FTC received a number of complaints and launched an investigation. The FTC proposed settlement will mark the end of that process.

The proposed settlement would require Facebook to submit to 20 years of privacy audits by an independent investigator. It would also require Facebook to get user permission before making any “material retroactive changes” to its privacy policy or to the information that it shares publicly.

This settlement with Facebook follows recent FTC settlements with Google and Twitter over their own privacy blunders. Google also submitted to 20 years of privacy audits as a result of its deceptive use of user information in connection with its Google Buzz service. And Twitter agreed to 10 years after a large number of users’ profiles were hacked.

These settlements reflect an increased focus by the FTC on online-privacy issues. The FTC has laid claim to privacy enforcement under the theory that it constitutes an unfair or deceptive trade practice, and therefore falls under the jurisdiction of the FTC. Congress has also started looking hard at privacy matters, with over 12 privacy-related bills introduced this year alone. Even the president—who was himself perhaps the most high-profile victim in the Twitter hacking debacle—has called for “a privacy bill of rights.”

In light of this increased scrutiny, Lisa Sotto, a partner at Hunton & Williams, advises “Companies would be wise to pay attention to this trend and implement privacy programs that include comprehensive assessments of their privacy practices.”

Facebook initially resisted an agreement to 20 years of audits, fighting instead for just five years. However, a rumored Facebook initial public offering in 2012 may have pushed the company to put the FTC dispute to rest. The company nonetheless continues to grapple with European officials over similar privacy concerns raised under German law.

Supreme Court Hears Oral Argument in GPS Tracking Case

In an era of constant and ubiquitous technology, it should be no surprise that law enforcement wants in on it, too. Today, the U.S. Supreme Court heard arguments in the case of Antoine Jones, who was convicted in 2008 of conspiracy to distribute drugs. In the case, the prosecution relied on evidence procured by a joint FBI-Washington D.C. Metropolitan Police task force; after investigating Jones unsuccessfully, they surreptitiously installed a GPS device on his car. Every time the car moved, the FBI tracked Jones’s movement by satellite—every 10 seconds, 24 hours a day, for 28 days. The tracking led to Jones’s arrest and he was subsequently convicted. However, a panel of judges on the Court of Appeals for the District of Columbia Circuit unanimously overturned the conviction, concluding that the warrantless tracking of the respondent’s car for such a long period violated the Fourth Amendment’s ban on unreasonable searches.

On June 8, 2010, the Federal Trade Commission (FTC) announced that it has finalized its settlement with a national entertainment and restaurant chain, Dave & Buster’s, in connection with alleged exposure of credit- and debit-card information. According to the FTC, the company failed to take reasonable steps to secure the sensitive personal information of customers on its computer network, which allowed a hacker to access approximately 130,000 accounts and make several hundred thousand dollars in fraudulent credit- and debit-card charges. Specifically, the FTC alleged that the company failed to take sufficient measures to detect and prevent unauthorized access to the network; adequately restrict outside access to the network, including access by Dave & Buster’s service providers; monitor and filter outbound data traffic to identify and block the export of sensitive personal information without authorization; and use readily available security measures to limit access to its computer networks through wireless access points.

Under the settlement, the company will (i) establish and maintain a program designed to protect its customers’ personal information, (ii) obtain professional third-party audits every other year for 10 years, and (iii) establish and maintain certain record-keeping requirements to allow the FTC to monitor compliance.

On December 16, 2009, U.S. Representatives Steve Cohen (D-TN) and Charlie Gonzalez (D-TX) introduced H.R. 4364, the “Citizen Participation Act of 2009.” The bill was referred to the House Committee on the Judiciary and later referred to the Subcommittee on Courts and Competition Policy on April 26, 2010. The proposed legislation seeks to “protect First Amendment rights of petition and free speech” by making it more difficult to bring lawsuits known as “Strategic Lawsuits Against Public Participation,” or SLAPPs.

SLAPPs refer to actions, often defamation claims, brought by businesses or government officials to retaliate against speech by individual defendants critical of the claimant and to otherwise intimidate such defendants and dissuade further criticism. Currently, 28 states have anti-SLAPP laws, which vary in their provisions and the protections offered. The proposed federal legislation is modeled primarily on California’s strong anti-SLAPP statute. Although SLAPPs have existed for decades, the perceived need for federal legislation has increased due to the recent spike in lawsuits brought largely against defendants engaging in speech on the Internet and, in turn, to the perceived threat these lawsuits pose to defendants’ First Amendment rights.

If enacted, the bill would create the first federal anti-SLAPP law and would protect speech on issues of public interest and petitions to the government by providing for procedural safeguards against SLAPPs, including: (i) removal of such suits to federal court, providing for a special, early motion to dismiss (on First Amendment grounds), (ii) a stay of discovery pending the court’s decision, and (iii) the recovery of attorney fees. The bill would also provide for qualified immunity in petitions to the government by applying the standard for protected speech concerning public figures set forth in New York Times Co. v. Sullivan, 376 U.S. 254 (1964) to any communication with the government, and would allow defendants to raise the qualified-immunity defense against both federal and state law claims.

On May 17, 2010, several public-interest groups and 10 individual plaintiffs filed suit in the U.S. District Court for the District of Arizona against all 15 Arizona county attorneys and sheriffs seeking that the court declare Arizona Senate Bill 1070, as amended by House Bill 2162 (SB 1070), unconstitutional and enjoin defendants from enforcing the law. Friendly House et al. v. Whiting, No. CV 10-1061 (D. Ariz. filed May 17, 2010). In an effort to identify and remove illegal aliens found in Arizona, SB 1070 proscribes new and controversial measures for law-enforcement agencies to undertake.

In the suit, the plaintiffs allege that SB 1070 (1) attempts to bypass federal immigration law and violates the supremacy clause, Article IV, section 2, of the U.S. Constitution; (2) violates the Fourteenth Amendment because it was enacted with the purpose and intent to discriminate against racial and national-origin minorities and violates individuals’ due-process rights and the right to travel; (3) violates the First Amendment because law enforcement is forced to make determinations of immigration status based on individuals’ speech; and (4) violates the Fourth Amendment by subjecting individuals to unreasonable searches and seizures. The plaintiffs also allege that SB 1070 violates the Arizona constitution and 42 U.S.C. § 1981.

Presently, there are two other related lawsuits alleging similar violations pending in the same court. The first was brought by a 15-year veteran of the Tucson Police Department against Arizona’s governor and attorney general as well as the city of Tucson and the Pima County Attorney. The second was brought by the National Coalition of Latino Clergy and nine individual plaintiffs against the state of Arizona. The U.S. Department of Justice also is considering whether to challenge SB 10

FTC States Failure to Prevent Information Shared on P2P Networks May Violate the Gramm-Leach-Bliley Act and FTC Act

Earlier this year, the Federal Trade Commission (FTC) announced that it has notified almost 100 organizations that personal information, including sensitive customer and employee data, stored on internal computer networks has been shared and made available to users on peer-to-peer (P2P) file-sharing networks and that such information may be used to facilitate identity theft or fraud. The FTC advised that the failure to prevent the sharing of such information may violate the Gramm-Leach-Bliley Act and the FTC Act, and the FTC has opened non-public investigations of companies whose customer or employee information may have been shared on P2P networks.

On April 14, 2010, the U.S. House of Representatives passed the Eliminate Privacy Notice Confusion Act (H.R. 3506), a bill that would exempt financial institutions that have not changed their policies pertaining to nonpublic personal consumer information or shared a customer’s financial information from the annual privacy notice update requirements of the Gramm-Leach-Bliley Act. Currently, financial institutions must provide annual privacy notices even if there has been no change since the last disclosure. The bill would not alter the privacy notices required when a consumer initially opens an account.

FINRA Fines Company for Inadequate Customer Information Safeguards

On April 12, 2010, the Financial Industry Regulatory Authority (FINRA) announced that it has fined D.A. Davidson & Co. $375,000 for allegedly failing to adequately safeguard confidential customer information. In December 2007, a hacker accessed and downloaded the company’s online database containing the confidential information of approximately 192,000 customers. The compromised information included, among other things, customer account numbers, Social Security numbers, names, addresses, and birth dates. To date, no misuse of the information has been reported.